For those who are interested, Fordham’s Orthodox Christian Studies Center has posted a video of last week’s panel on the the persecution of Mideast Christians, in which I participated, along with Sidney Griffith (Catholic University), James Skedros (Hellenic College/Holy Cross Seminary), and Samuel Tadros (Hudson Institute). Fordham’s George Demacopoulous served as moderator. Have a look:
Barclay & Rienzi, “Constitutional Anomalies”
Allow people to pose religious objections to generally-applicable laws, the argument goes, and you will end up with chaos, a world in which every person is a law unto himself. That argument carried the day twenty-seven years ago in Employment Division v. Smith, and resurfaced as recently as last week, during oral argument in Masterpiece Cakeshop. A new article by Stephanie Barclay (Becket) and Mark Rienzi (Catholic University-Columbus School of Law), “Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Objections,” maintains that the argument is overstated. The authors argue that religious accommodations are analogous to customary “as-applied” challenges in constitutional law, which have not destroyed the rule of law. Here’s the abstract:
In the wake of Hobby Lobby and now in anticipation of Masterpiece Cakeshop, the notion that religious exemptions are dangerously out of step with norms of constitutional jurisprudence has taken on renewed popularity within the academy. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey. And such a scheme will result in a tidal wave of religious claimants striking down government action at every turn.
Our article presents a novel observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenge offered as a default remedy elsewhere in constitutional adjudication. Furthermore, under this form of as-applied adjudication, courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror exemptions critics fear in the context of religious exercise. This is true even in the hotly debated context of anti-discrimination laws.
The article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. In fact, religious cases as a percentage of the total reported case load appear to have decreased after Hobby Lobby. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.
Tradition and Going Topless
Earlier this week, I had a post at the Liberty Law site on a recent Seventh Circuit decision in the GoTopless case, a challenge to Chicago’s public nudity ordinance, which forbids women, but not men, to remove their tops in public. The majority maintained that the city’s interest in promoting traditional norms justified the ban, but the dissent disagreed, arguing, among other things, that the city was simply promoting outdated cultural stereotypes.
Here’s an excerpt from my post on the case:
Judge Sykes’s opinion suggests that, even after cases like Obergefell, Lawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.
Second, Judge Rovner’s dissent suggesting that the law should follow biology rather than culture is misleading. Of course rules regarding public nudity are a cultural phenomenon. Culture is, among other things, a reflection on human biology; different cultures have different perceptions. In some cultures women appear topless in public; in others they do not. Allowing women to appear topless in public is not to substitute biology for culture, but rather to replace one culture with another—a culture that sees public nudity as appropriate for one that does not. Perhaps that is a good idea, but it has little to do with the objective facts of biology.
You can read the whole post here.
Henry, “Christmas with the Presidents”
Just in time for the Christmas season is this book by Mike Henry, Christmas With the Presidents: Holiday Lessons for Today’s Kids From America’s Leaders (Rowman & 
Littlefield). If the blurb is to be credited, this looks like an overt piece of political-theological pedagogy masquerading as history. Perfect fare for the Friday fluff category.
Everyone celebrates the Christmas holidays in their own way, and that includes the President of the United States. Some have enjoyed large gatherings, while others took part in a quiet, relaxing atmosphere. This book takes a look at each of the country’s leaders approach to the year’s biggest holiday season, and some of the traditions they started.
Around the Web
Here are some important law-and-religion news stories from around the web:
- The Trump Administration has officially recognized Jerusalem as the capital of Israel and will move the U.S. embassy there.
- In a significant escalation of the war in Yemen, the country’s former President was killed when rebels overran his home in the capital.
- Observers believe that Justice Anthony Kennedy may be the decisive vote in Masterpiece Cakeshop, and his questions at oral argument left it unclear which side he favors.
- By a 7-2 vote, the Supreme Court denied a request for a stay of the Trump Administration’s travel ban, which is in its third iteration. Justices Ginsburg and Sotomayor dissented from the denial.
- A federal court in Nevada has ruled that humanism is not a religion.
- A secular advocacy group has had its lawsuit challenging a Ten Commandments monument outside a Florida government complex dismissed for lack of standing.
Scruton, “The Politics of Culture and Other Essays”
Sir Roger Scruton, our Tradition Project lecturer for our session on “Tradition, Culture, 
and Citizenship” (see above for the lecture) has a new collection of essays coming out in January 2018, The Politics of Culture and Other Essays (St. Augustine Press). This particular collection seems to center on Sir Roger’s manifold aesthetic and literary interests.
This work brings together Scruton’s best essays from many sources, arranging them thematically. The book has four sections: Language and Art, Writers in Context, Architecture, and Culture and Anarchy. Though the essays are diverse, certain themes are developed in particular and then in general ways, and there are several important essays on writers and critics, that contribute to the reappraisal of their work – among them Dante, Andre Breton, Graham Greene, James Joyce, Sylvia Plath, Jacques Lacan, and Yukio Mishima.
Rodgers, “The Struggle for the Soul of Journalism: The Pulpit vs. the Press, 1833-1923”
Here’s what looks like a fascinating account of a historical struggle in nineteenth and
early twentieth century America: Ronald R. Rodgers, The Struggle for the Soul of Journalism: The Pulpit vs. the Press, 1833-1923 (University of Missouri Press). Of course, the struggle resulted in the ostensible triumph of the press over the pulpit in the twentieth century. Or did it? In the new era of “fake news” and the systematic loss of authority of institutions like the press (and the church), one wonders just who vanquished whom. Perhaps everyone lost.
In this study, Ronald R. Rodgers examines several narratives involving religion’s historical influence on the news ethic of journalism: its decades-long opposition to the Sunday newspaper as a vehicle of modernity that challenged the tradition of the Sabbath; the parallel attempt to create an advertising-driven Christian daily newspaper; and the ways in which religion—especially the powerful Social Gospel movement—pressured the press to become a moral agent. The digital disruption of the news media today has provoked a similar search for a news ethic that reflects a new era—for instance, in the debate about jettisoning the substrate of contemporary mainstream journalism, objectivity. But, Rodgers argues, before we begin to transform journalism’s present news ethic, we need to understand its foundation and formation in the past.
Bowman, “Christian: The Politics of a Word in America”
Recently I have written about what I have termed “anti-Christian identity politics,” an emerging style of political identification and argumentation in an increasingly fragmented country. Here is a new book by historian Matthew Bowman, Christian: The Politics of a Word in America (HUP) that explores political divisions among groups that 
identify as Christian in America.
Religious diversity has long been a defining feature of the United States. But what may be even more remarkable than the sheer range of faiths is the diversity of political visions embedded in those religious traditions. Matthew Bowman delves into the ongoing struggle over the potent word “Christian,” not merely to settle theological disputes but to discover its centrality to American politics.
As Christian: The Politics of a Word in America shows, for many American Christians, concepts like liberty and equality are rooted in the transcendent claims about human nature that Christianity offers. Democracy, equality under the law, and other basic principles of American government are seen to depend upon the Christian faith’s sustenance and support. Yet despite this presumed consensus, differing Christian beliefs have led to dispute and disagreement about what American society and government should look like. While many white American Protestants associate Christianity with Western Euro-American civilization, individual liberty, and an affirmation of capitalism, other American Christians have long rejected those assumptions. They maintain that Christian principles demand political programs as wide-ranging as economic communalism, international cooperation, racial egalitarianism, and social justice.
The varieties of American Christian experience speak to an essentially contested concept of political rights and wrongs. Though diverse Christian faiths espouse political visions, Christian politics defy clear definition, Bowman writes. Rather, they can be seen as a rich and varied collection of beliefs about the interrelationships of divinity, human nature, and civic life that engage and divide the nation’s Christian communities and politics alike.
Masterpiece Cakeshop Explained
For those who are interested, I’ve done a short video for the Federalist Society explaining the arguments in Masterpiece Cakeshop, the gay wedding cake case, which will be argued tomorrow at the Supreme Court. The link to the video is below:
Reich, “The Common Good”
Here’s another entry in an emerging genre that includes Mark Lilla’s “The Once and 
Future Liberal”: liberal public intellectuals arguing for an American “common good” that is intended to “unify” what appears to be an increasingly fractured country. Here, it is Robert Reich in The Common Good (Penguin Random House). Of course the idea of the “common good” is an ancient one, and finds one very powerful and influential expression in the writing of religious figures with philosophical interests. But it is interesting to note that though Reich aspires to “save America’s soul,” such accounts do not seem to figure at all in Reich’s account, which the blurb for the book claims is grounded “in everyday reality and common sense.”