In this followup to Episode 22, we discuss new developments in litigation over government orders to close churches during the COVID-19 epidemic, including a decision by the U.S. Supreme Court. We ask whether local authorities continue to merit judicial deference and whether courts should decide what sort of worship services should satisfy believers. Listen in!
At the Liberty Fund site this morning, I have an essay on the scarcity of religious belief among American law professors. I explore the reasons for the scarcity and the effect the scarcity has on American legal education. And I reflect a bit on my own career choices. Here’s an excerpt:
This leads to the third question: what, if anything, should be done? Law schools could do more to seek out and promote candidates who bring religious perspectives to their work and teaching—something that would be entirely consistent with the laudable goal of increasing the representation of ethnic and racial minorities on law school faculties. I doubt such an effort will be forthcoming, though. For the reasons I’ve explained, most law professors see religious perspectives as irrelevant to their work and don’t perceive their absence as a serious problem. This is true even at law schools with religious affiliations—again, with some notable exceptions. Besides, increasing ideological diversity and inclusiveness is not a priority for most law faculties.
This is a pity, because religious perspectives on law would offer much to our students. It is not simply a matter of knowing the historical foundations of our laws or appreciating the critiques of the past. Religious perspectives would offer students insights into current legal controversies. For example, in America today, we are debating whether the state may constitutionally order churches to close during an epidemic. In legal terms, the cases often turn on a balancing test, in which courts weigh the government’s interest in curtailing an epidemic against the burden that closure imposes on the practice of religion. To understand the cases, students need to hear, not only the secular perspectives of most law professors, but the perspectives of people inside faith communities, who can explain why believers find orders to close such an imposition. The comparative absence of religious law professors makes it less likely students will hear both sides.
At the First Things site today, I have an essay on the current round of church closures cases. To understand these cases, one has to cut through doctrinal details and focus on the factor that most drives the judges’ decisions: the need to defer to public health authorities during a crisis. That’s usually sensible. Judges are not epidemiologists, and they are not accountable if they get things wrong. But local authorities have begun acting in ways that betray that trust:
In the last couple of weeks, local authorities have squandered much of their credibility. For months, public health authorities have told Americans that gatherings of more than a few people, even outdoors and with social distancing, should not take place because of the grave risk of contagion. Families could not even have funerals for loved ones. Now, however, many of those same public health authorities say (while others remain silent) that mass protests can and should go forward, given the issues involved. Combatting racism and police brutality is profoundly important. But that’s a separate question from whether the gatherings pose a public health risk. As Ross Douthat wrote, the virus doesn’t care why someone is protesting.
Moreover, in making these arguments, some local officials have expressly disparaged religion. Here in New York, Mayor de Blasio used dismissive terms to explain why the city has permitted protests but forbidden Hasidic funerals: Religion, the mayor said, was simply not as important. The mayor is entitled to his opinion; probably most New Yorkers agree with him. But his statements—and those of other elected officials—should make courts skeptical about deferring to the judgment of local authorities.
Here is the “Professors Panel” (video and audio) from the joint Journal of Catholic Legal Studies and Center for Law and Religion symposium on the history and future of Catholic legal education. Our panelists were Professors Angela Carmella, Teresa Collett, Richard Garnett, Jeffrey Pojanowski, and Amy Uelman. It was a pleasure to host this conference on the forthcoming book on the subject by Professors John Breen and Lee Strang.
On February 14, 2020, the Journal of Catholic Legal Studies and the Center for Law and Religion co-hosted a conference on a forthcoming book by Professors John Breen (Loyala University Chicago) and Lee Strang (University of Toledo), “A Light Unseen: A History of Catholic Legal Education.” The symposium consisted of a “Deans Panel” and a “Professors Panel.”
Here is the audio of the Deans Panel, featuring very interesting commentary on the state and future of Catholic legal education from Deans Kathleen Boozang (Seton Hall), Marcus Cole (Notre Dame), Vincent Rougeau (Boston College), Michael Simons (St. John’s), William Treanor (Georgetown), and Robert Vischer (St. Thomas).