In this episode, we interview Italian political scientist Lorenzo Castellani about his new book, “The Gear of Power” (L’Ingranaggio del Potere), which explores the rise of the “technocacy”–a new aristocracy, based on technical expertise, that increasingly dominates politics in the West. We discuss how claims of neutral expertise can mask underlying (and contested) moral commitments, and how the rise of the technocracy has provoked a populist backlash in Europe and America, including with respect to public-health restrictions on worship during the Covid pandemic. Listen in!
Here are some important law-and-religion news stories from around the web:
- A petition for certiorari was filed with the U.S. Supreme Court in Calvary Chapel of Bangor v. Mills, a case challenging Maine’s COVID-19 restrictions on worship.
- In Planned Parenthood of Indiana and Kentucky, Inc. v. Box, the Seventh Circuit ruled against enforcement of a statute requiring that a minor’s parents be notified when their child seeks a judicial bypass to obtain an abortion.
- The Ninth Circuit heard oral argument in The Satanic Temple v. City of Scottsdale, an Establishment Clause challenge to a city’s denial of a group’s request to deliver an invocation at a City Council meeting.
- In Coble v. Lake Norman Charter School, a North Carolina federal district court dismissed parents’ First Amendment challenge to the appearance of The Poet X, a book by Elizabeth Acevedo, in their children’s high school literature curriculum. The parents argued that the book expresses hostility towards religion.
- In Kelly v. Montana Department of Transportation, a Montana federal district court dismissed a free exercise challenge to the removal of a “spiritual cross” pltf had erected on the side of a highway in memory of his stepson. The court found that the cross, on public land, constituted government speech.
- In Trustees of the General Assembly of the Lord Jesus Christ of the Apostolic Faith, Inc v. Patterson, a Pennsylvania federal district court granted a preliminary injunction preventing a county sheriff from carrying out an eviction notice against the church.
Here are some important law-and-religion stories from around the web.
- The U.S. 8th Circuit Court of Appeals affirmed the denial of a preliminary injunction to a street preacher who was limited to preaching across from a festival entrance.
- The U.S. 9th Circuit Court of Appeals upheld a Washington state school board’s dismissal of a high school football coach who prayed at the 50-yard line immediately after football games.
- The U.S. 3rd Circuit Court of Appeals held that absolute legislative immunity extends to acts that are “quintessentially legislative” after a consulting agency for Islamic educational groups sued Pennsylvania state legislators for actions that prevented the agency from purchasing state land for a youth intervention center and Islamic boarding school.
- A New York federal district court entered a consent decree requiring modification of the village of Airmont’s zoning code because provisions discriminate against Orthodox Jewish residents in violation of the Religious Land Use and Institutionalized Persons Act.
- A New York state appellate court rejected constitutional challenges to New York’s repeal of the religious exemption from mandatory vaccination for school children.
Here are some important law-and-religion stories from around the web:
- The Second Circuit held that Section 230 of the Federal Communications Decency Act immunizes the video sharing platform Vimeo from a lawsuit alleging religious and sexual orientation discrimination under California law.
- A California federal district court declined to issue a preliminary injunction against California’s COVID-19 restriction on indoor singing and chanting during worship services.
- A Colorado state trial court dismissed Colorado Consumer Protection Act claims against a bakery that has been the subject of extensive litigation over its refusal to design wedding cakes for same-sex weddings.
- A Texas state appellate court held that the Texas Commission on Human Rights Act (TCHRA) should be read to prohibit discrimination on the basis of sexual orientation or gender identity.
- Arkansas Governor Asa Hutchinson signed into law SB6, the Arkansas Unborn Child Protection Act, which bans all abortions, except to save the life of a pregnant woman in a medical emergency.
- The England and Wales High Court held that the religious freedom rights of protesters at Stonehenge were not infringed when they were convicted of violating restrictions.
- The Indian High Court of the State of Tripura dismissed a complaint filed against a petitioner for violating, through a Facebook post, Section 295A of the Indian Penal Code, which prohibits deliberate and malicious acts intended to outrage religious feelings by insulting religion or religious beliefs.
I was delighted to present a new paper at the University of Arizona Rehnquist Center’s National Conference of Constitutional Law Scholars today. I was on the religion and speech panel, with interesting presentations from Professors Luke Boso; Stephanie Barclay and Justin Collings; and Shaakirrah Sanders.
My paper (not yet in public circulation) is called “Establishment’s Political Priority to Free Exercise,” and it examines which set of principles and commitments underlying each Clause has political priority conceptually, temporally, and as a matter of general significance.
Professor Melissa Murray commented acutely and very helpfully on the draft and the presentation. More soon on this paper.
I have this review at the Liberty Fund Law and Liberty site of Professor John Lawrence Hill’s book, The Prophet of Modern Constitutional Liberalism: John Stuart Mill and the Supreme Court (2020). A bit from the end:
“What may be most puzzling in harm principle arguments is the assertion that they are not moral arguments. Hill repeats this claim in describing Mill’s view that the harm principle eschews “legal moralism.” True, Mill’s moralism is of a peculiar sort—one that steadfastly denies its moralism even as it imposes it. And this, too, is part of Mill’s legacy in American law. “Don’t impose your morality on me!” Such is the complaint, in the high and mighty places of American legal culture, of those most willing to do just that through the harm gambit.
Might it not be better simply to dispense with the harm principle? The advantages are plain. Rather than disguising what are contested moral assertions in the discursive cloak of harm—or its currently fashionable obverse, “health”—we could call deep moral disagreement by its rightful name. The losers would at least lose honestly, and what they lose could be recognized as a loss. They would not suffer the further indignity of explanations that their views are just a category mistake.
Yet regrettably, we seem destined to bear Mill’s burden. Harm-creep and harm-shrink in constitutional law track developments in other cultural arenas, where the concept of harm has enjoyed “semantic inflation” and deflation. And the efficacy of harm claims tends to correspond with who’s up and who’s down anyway. Those who wield cultural influence and can translate what they take to be grievances into legally cognizable harms will feel justified in dismissing the losers’ further losses simply as “not harms.”
A balancing of losses and gains is not enough for the victors, because only a moralized victory that treats them as fully virtuous (or “privileged” but absolved after some modest public abasement) and deserving of their wins will do. Hurts to the wrong sort of people become not matters of regret, but moral imperatives. Those hurts are “non-harm.” All the while, collateral wounds of various sorts accrue and are rendered invisible. It would not be fair to blame Mill for all of this, in legal discourse or elsewhere. Perhaps moral argument in law inevitably has something of this quality—that when the strong do what they can, it is the moral fault of the weak that they suffer as they must.”
Here are some important law-and-religion news stories from around the web:
- The U.S. Fifth Circuit Court of Appeals heard oral arguments in Franciscan Alliance v. Cochran, the appeal focused on whether the district court should have issued an injunction against future enforcement of the rule, issued under the Patient Protection and Affordable Care Act, that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance.
- In Waln v. Dysart School District, an Arizona federal district court rejected a free exercise, free speech, and equal protection challenge to a school district’s refusal to allow a graduating senior to wear a decorated cap at graduation ceremonies for cultural and religious reasons.
- A Virginia state court, in Young v. Northam, denied the petitioner’s challenge to COVID-19 restrictions on churches concluding that the petitioner is not entitled to injunctive relief because they have not overcome the health and safety exception in the Virginia Statute for Religious Freedom.
- Bethany Christian Services, the country’s largest Protestant adoption and foster care agency, announced a nationwide policy change that the agency will now match children with LGBTQ couples.
- The Department of Agriculture announced its decision to delay the transfer of an Apache sacred site in Arizona to a mining company, concluding that additional time is necessary to fully understand the concerns raised by the Tribes and the public.
- Israel’s high court requires that the government allow those who converted to non-Orthodox Judaism in Israel to become citizens.