Around the Web

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

  • In Ciraci v. J.M. Smucker Company, the Sixth Circuit held that a first amendment free-exercise claim could not be made by employees working for a federal contractor. The employees were denied a religious exemption from a Covid vaccine mandate but, because they were working for a federal contractor and not for the government itself, the court found that constitutional guarantees did not apply to them.
  • In Wrigley v. Romanick, the North Dakota Supreme Court declined to vacate a trial court’s preliminary injunction that barred enforcement of the state’s 2007 abortion ban, which went into effect when the Supreme Court overruled Roe v. Wade last year. The court determined that a critical defect in the abortion ban was the absence of an exception for preserving the health of the mother.
  • Six Jewish parents and two Orthodox Jewish day schools filed a law suit in a California federal district court challenging the exclusion of sectarian schools from receiving funds made available to California user the Individuals with Disabilities Education Act. The complaint in Loffman v. California Department of Education alleges that the plaintiffs are entitled to equal treatment and should be afforded a portion of the generally available public funding necessary to provide education to students with disabilities.
  • A Christian preschool and the church that sponsors it filed a law suit in a Connecticut federal district court, challenging the removal of religious exemptions from Connecticuts’s statute requiring various vaccinations for preschool children. The complaint in Milford Christian Church v. Russell-Tucker alleges that the requirement violates free exercise, free speech, freedom of association, equal protection, and child rearing rights.
  • The governor of Utah signed HB467, which requires that all abortions performed after January 1, 2024 be performed in hospitals rather than abortion clinics. It goes on to create an exception for rape, incest, and for pregnant females under the age of 14. However, all these abortions are only allowed to be performed before 18 weeks of pregnancy. 
  • The article, Faith After the Pandemic: How COVID-19 Changed American Religion, published on the Survey Center on American Life website, discusses the post-Covid increase in the number of individuals identifying as religiously unaffiliated.

The Disintegration of Free Speech?

There is a growing consensus that the principle of free speech is in crisis, whether the dangers are coming primarily from government actors, or private actors intent on suppressing dissenting views, or both (matters on which there is considerable disagreement). There is also growing anxiety about the sustainability of academic freedom, as well as the associated structure of tenure. There is even doubt and intense disagreement about the basic function and purpose of the university. Here is a new book discussing these developments in historical perspective, The Collapse of Freedom of Expression: Reconstructing the Ancient Roots of Modern Liberty (Notre Dame Press) by Jordi Pujol.

The topic of free speech is rarely addressed from a historical, philosophical, or theological perspective. In The Collapse of Freedom of Expression, Jordi Pujol explores both the modern concept of the freedom of expression based on the European Enlightenment and the deficiencies inherent in this framework. Modernity has disregarded the traditional roots of the freedom of expression drawn from Christianity, Greek philosophy, and Roman law, which has left the door open to the various forms of abuse, censorship, and restrictions seen in contemporary public discourse. Pujol proposes that we rebuild the foundations of the freedom of expression by returning to older traditions and incorporating both the field of pragmatics of language and theological and ethical concepts on human intentionality as new, complementary disciplines.

Pujol examines emblematic cases such as Charlie Hebdo, free speech on campus, and online content moderation to elaborate on the tensions that arise within the modern concept of freedom of expression. The book explores the main criticisms of the contemporary liberal tradition by communitarians, libertarians, feminists, and critical race theorists, and analyzes the gaps and contradictions within these traditions. Pujol ultimately offers a reconstruction project that involves bridging the chasm between the secular and the sacred and recognizing that religion is a font of meaning for millions of people, and as such has an inescapable place in the construction of a pluralist public sphere.

Video of “The Role of Tradition in Constitutional Law”

Here is video of this panel discussion yesterday with Professors Walsh, Young, and me at Catholic University’s Center for the Study of Originalism and the Catholic Intellectual Tradition. I enjoyed the exchange very much.

Video of Last Week’s Panel at Cardozo

The Floersheimer Center at Cardozo Law School has posted a video (below) of last week’s panel discussion on “The Supreme Court and New Frontiers in Religious Liberty,” in which I was honored to participate, along with Nelson Tebbe (Cornell), Elizabeth Reiner Platt (Columbia Law), and Giselle Klapper (Sikh Coalition) . Thanks again to Michael Pollak, Hui Yang, and the Floersheimer team for having me–and for hosting a cordial and productive exchange of disparate views in the best tradition of the legal academy.

Saudi Arabia vs. Iran

The news last week that Saudi Arabia and Iran will restore diplomatic relations (a deal brokered by China, which fact raised eyebrows among American observers) is quite significant for the Mideast. Although both are Islamic-law countries, they are serious rivals–and part of the rivalry stems from religion. Saudi is a majority Sunni country and Iran a majority Shia one. But religion makes up only part of the story of their rivalry, as a new book from Cambridge, The Struggle for Supremacy in the Middle East: Saudi Arabia and Iran, points out. The author is Simon Mabon (International Politics) at Lancaster University. Here’s the description from the Cambridge website:

Since 1979, few rivalries have affected Middle Eastern politics as much as the rivalry between Saudi Arabia and Iran. However, too often the rivalry has been framed purely in terms of ‘proxy wars’, sectarian difference or the associated conflicts that have broken out in Iraq, Lebanon, Syria, Bahrain, and Yemen. In this book, Simon Mabon presents a more nuanced assessment of the rivalry, outlining its history and demonstrating its impact across the Middle East. Highlighting the significance of local groups, Mabon shows how regional politics have shaped and been shaped by the rivalry. The book draws from social theory and the work of Pierre Bourdieu to challenge problematic assumptions about ‘proxy wars’, the role of religion, and sectarianism. Exploring the changing political landscape of the Middle East as a whole and the implications for regional and international security, Mabon paints a complex picture of this frequently discussed but oft-misunderstood rivalry.

Movsesian on Bullivant on the Rise of the Nones

At the Law and Liberty site, I review Stephen Bullivant’s fine new book on the rise of the Nones and argue that the middle is falling out of American religion in favor of the extremes on either end. Here’s an excerpt:

Bullivant rejects the conventional view that nonverts tend to come from the ranks of people whose religious affiliation was indifferent to begin with—those who were Christians in name only. Many Nones “were once genuinely believing and practicing—even ‘painfully devout,’” he writes. It isn’t simply weak Christians who are drifting away, but true believers. As a consequence, he believes, the crisis facing American Christianity is real and worse than many would like to admit.

As evidence, Bullivant points to data that shows that more and more Americans who regularly attended church as children become Nones as adults. “These were church kids,” he notes. But attending church regularly as a kid isn’t really a proxy for religious commitment; lots of kids go because their parents make them. And some data refutes Bullivant’s argument. For decades, the GSS has asked respondents to rate the strength of their religious affiliation. The percentage of respondents who say their religious affiliation is “strong” has gone down a bit since 1990, but not by much: from 37 percent to 34 percent.

By contrast, the percentage of respondents who rate their religious affiliation as only “somewhat strong” has gone down dramatically, from 14 percent to 4 percent. As in so many areas of American life, the middle seems to be dropping out in favor of the extremes on either end. If current trends continue, American religion will be polarized between very committed believers and people who reject organized religion entirely. That’s not a recipe for a harmonious society.

Of course, even if it’s only nominal Christians who are leaving, that itself reflects something important about the religion’s waning influence in American life, as Bullivant insightfully observes. Nominal adherence tells you how a brand is doing, which is why “successful sports teams often have vast numbers of casual fans.” It’s fun to root for a winning team. When a team falls on hard times, its fair-weather fans desert it. More than anything else, it seems, that describes what’s happening to American Christianity right now.

You can read the full review here.

Discussion on the Role of Tradition in Constitutional Law at CUA

Here’s another event in which I’ll be participating at Catholic University, this one a discussion on Thursday at 12:30 with Professor Ernest Young and Professor Kevin Walsh, The Role of Tradition in Constitutional Law. The event is part of CUA’s Project on Constitutional Originalism and the Catholic Intellectual Tradition (though some renegade non-originalists like me sometimes sneak in, too!). Again, the event will be recorded, but if you are in town, please stop by and say hello!

Around the Web

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

  • The U.S. Supreme Court denied review in City of Ocala, Florida v. Rojas. In the case, the Eleventh Circuit vacated and remanded a district court’s Establishment Clause decision that had relied on the now-repudiated Lemon test. The district court had granted summary judgment to plaintiffs who challenged a prayer vigil co-sponsored by the Ocala police department held in response to a shooting spree that injured several children.
  • In Speed Way Transportation, LLC v. City of Gahanna, Ohio, the Sixth Circuit held that a towing company adequately alleged an equal protection claim. Plaintiffs, who are Muslim, claimed religious and national origin discrimination in the city’s rejection of their bid for a three-year towing contract.
  • In Carrier v. Ravi Zacharias International Ministries, Inc., a Georgia federal district court held that claims for unjust enrichment and violation of the Georgia Fair Business Practices Act brought against a Christian apologetics ministry and the estate of its founder cannot proceed as a class action. Plaintiffs must instead proceed only in their individual capacities.
  • The complaint in Arizona Christian University v. Washington Elementary School District No. 6 alleges that a public school district violated the Free Exercise Clause, Free Speech Clause, and other federal constitutional provisions, as well as Arizona law, when it terminated the student-teacher agreement between the university and the school district.
  • In Griggs v. Graham, plaintiffs objected to the design of the default Mississippi license plates that included the state seal, a part of which was the motto “In God We Trust.” Specialty plates with alternative designs are more expensive and unavailable for trailers, RVs, and motorcycles. The court, relying on the Supreme Court’s 1977 decision in Wooley v. Maynard, refused to require the state to issue separate non-religious license plates.
  • In Ossewaarde v. Russia, the European Court of Human Rights held that legal restrictions imposed by Russia in 2016 on religious proselytizing violated the rights of a Baptist pastor who was a U.S. national living in Russia. The court found violations of Articles 9 (freedom of religion) and 14 (prohibition of discrimination) of the European Convention on Human Rights.

Morningside Institute Seminars on Natural Law

The Morningside Institute will host two seminars on natural law, on March 22 and 29, at Columbia Law School. See below for details:

Natural Law: Aquinas, Locke, and the Moral Foundations of America

From the Declaration of Independence to Letter from Birmingham Jail, Americans have appealed to the natural law as the foundation of political action and justice in our society. Today, however, the natural law is widely contested and rejected by some as partisan or dangerous. In this seminar series, Philip Hamburger (Columbia) and Nathaniel Peters (Morningside) will explore Thomas Aquinas’s and John Locke’s conceptions of the natural law and how they might help us understand the moral foundations of twenty-first century America.

Part I of this seminar will meet from 6:00 PM-7:30 PM on March 22, 2023 in Case Lounge, 7th floor of main law school building, Jerome Greene Hall (435 W. 116th St). Due to policies at the law school, you must register to attend.

Part II of this seminar will meet from 6:00 PM-7:30 PM on March 29, 2023 in Room 416 of William and June Warren Hall on Amsterdan Avenue. Due to policies at the law school, you must register to attend.

Guiding the Perplexed

One of the great and perennial problems in law is the relationship between “the rules” and the transcendental order (if any) that animates them. This is so in all the Abrahamic religions, which have, over the centuries, developed different understandings of that relationship. Even within a single religion, different strains emerge: the Thomism of Catholicism differs from the approach of the Christian East and from Protestant understandings. Luther burned the canon law books, after all.

A new book from Yale explores perhaps the greatest sage of Jewish law who attempted a synthesis between faith and legal reasoning: Maimonides: Faith in Reason. The author is Alberto Manguel. Here’s the publisher’s description:

An exploration of Maimonides, the medieval philosopher, physician, and religious thinker, author of The Guide of the Perplexed, from one of the world’s foremost bibliophiles
Moses ben Maimon, or Maimonides (1138–1204), was born in Córdoba, Spain. The gifted son of a judge and mathematician, Maimonides fled Córdoba with his family when he was thirteen due to Almohad persecution of all non-Islamic faiths. Forced into a long exile, the family spent a decade in Spain before settling in Morocco. From there, Maimonides traveled to Palestine and Egypt, where he died at Saladin’s court.
As a scholar of Jewish law, a physician, and a philosopher, Maimonides was a singular figure. His work in extracting all the commanding precepts of Jewish law from the Hebrew Bible and the Talmud, interpreting and commenting on them, and translating them into terms that would allow students to lead sound Jewish lives became the model for translating God’s word into a language comprehensible by all. His work in medicine—which brought him such fame that he became Saladin’s personal physician—was driven almost entirely by reason and observation.
In this biography, Alberto Manguel examines the question of Maimonides’ universal appeal—he was celebrated by Jews, Arabs, and Christians alike. In our time, when the need for rationality and recognition of the truth is more vital than ever, Maimonides can help us find strategies to survive with dignity in an uncertain world.