Here are some important law-and-religion news stories from around the web:
In St. Augustine School v. Underly, the Seventh Circuit sent back to the district court a suit challenging Wisconsin’s refusal to provide bus transportation to students at St. Augustine School, a private religious school. The court concluded that the decision to provide transportation was not justified by neutral and secular considerations.
The Eighth Circuit heard oral arguments in Religious Sisters of Mercy v. Becerra. Below, a North Dakota federal district court granted various Catholic-affiliated health care entities with an injunction prohibiting the enforcement of anti-discrimination laws against them in connection with providing coverage for transgender procedures.
In Downtown Soup Kitchen v. Municipality of Anchorage, an Alaska federal district court refused to grant injunctive relief to the Hope Center, a faith-based women’s shelter, after a new public accommodation law would require them to provide housing to trans-identifying women. The court concluded that since the city does not consider the Hope Center a public accommodation the center could not demonstrate a credible threat of enforcement.
In Fallon Paiute-Shoshone Tribe v. U.S. Department of the Interior, the Fallon Paiute-Shoshone Tribe brought suit alleging that the new Dixie Meadows geothermal energy project will negatively impact the Dixie Meadows hot springs and the surrounding landscape and thus, violate their members’ sincerely held religious beliefs.
China has barred the chair, vice-chair, and two commissioners of the U.S. Commission on the International Religious Freedom from entering China.
In Public Discourse today, I have an essay that explains why the Court has declined to address claims that Covid vaccine mandates in places like Maine and New York violate the First Amendment. Here’s an excerpt:
The Court has not explained its reasons in these cases. But the justices’ caution is not surprising, for a few reasons. First, religious exemption claims generally pose hard questions, which are particularly troublesome in this context. The COVID-19 pandemic has intensified divisions about the value of religion and religious freedom in our country, and the justices might wish to avoid doing something to provoke further conflict. Second, the Maine and New York lawsuits are currently at the preliminary injunction stage, and the factual records in the cases are still unclear. The Court might reasonably think that it should allow the lower courts an opportunity to consider the claims further before it issues any rulings. Finally, the Court might think that state and local governments will themselves see the prudence of offering religious exemptions, as many already have done, considering the difficulties vaccine mandates have created for healthcare and other services.
The Program on Church, State & Society at Notre Dame Law School announced a writing competition for law students focused on scholarship related to the intersection of church, state & society, and in particular how the law structures and governs that intersection.
Papers should be focused, broadly, on topics related to church, state & society. Papers must be between 9,000-13,000 words, including footnotes and/or endnotes. Papers should be double spaced and use Bluebook citation rules. Papers must be submitted by March 1st, 2022.
First Place, $3,000 cash award; Second Place, $2,000 cash award; Third Place, $1,000 cash award; Honorable Mention awards of $500.
I have a little review essay just published by the American Journal of Jurisprudence with this title (Graham Greene, apologies) reviewing Professor Joel Harrison’s recent book, Post-Liberal Religious Liberty: Forming Communities of Charity (CUP 2020). A portion:
“[A]s Joel Harrison observes in his new book, the price extracted from traditional religion for these thawing relations with liberalism was steep. First, the substratum of Christian culture and historical connection with Western nations had to be systematically stripped away to clear a path for the new civil religion of the liberal regime—as Harrison says, a new “true religion” of the modern civic sphere to replace the old one. (24) Second, because traditional religion was always perceived as a threat to the liberal egalitarian political order, it was expanded by that order to encompass an increasing range of phenomena connected to one of liberalism’s own master commitments, individual autonomy. Religion was in this way at once domesticated and subsumed by liberalism, “contained” and trivialized by hypertrophy. (55) Institutional religion, Harrison continues, was “flattened” to what liberalism regards as the most basic constituent fragment, the individual believer. (55) Third, this new capaciousness had the effect of subjecting religion to an assortment of balancing tests at law, in which religion’s importance was perpetually weighed against sundry other quotidian interests. Religion was reduced to one more consideration, no more intrinsically weighty than any other, that the liberal authority could horse-trade and dole out as it pleased. Fourth, it was deemed out of order for government officials and even ordinary citizens to make public appeals to religious authority as a transcendent source of meaning and worth in the activities of the polity. These claims instead had to be translated into the “secular” argot of liberal commitments—“reconceived as just like any other claim of ethical freedom”—to gain admission to the liberal courts of law and politics. (11) If they could not be, they were cordoned off to the “private” sphere. (13)”
At Law and Liberty today, I have an essay on law in Shakespeare’s The Merchant of Venice,” in which I expand on some themes that Marc and I discussed in our recent Legal Spirits episode. Specifically, I explore the play’s lessons about the limits of law in a pluralist society:
For the people of Shakespeare’s day, Bloom writes, Venice represented the hope that society could transcend religious and cultural differences through commerce—or, rather, through commercial law. Classical liberal thinkers would call later it the doux commerce thesis: allow people to trade freely with each other and they would ignore religious and other differences, which get in the way of profit, and live together peaceably. The give-and-take of the market would train people to cooperate with one another and forego proselytizing. All that was necessary was that the state enforce people’s contracts on equal terms, neutrally and fairly, without giving one group or another the upper hand. Everything else would follow.
Venice was less serene and indifferent to religion than portrayed. But, as a symbol, the city was important. And by drawing the conflict as starkly as he does, Shakespeare means to ask whether the Venetian system can work where intercommunal divisions concern bedrock beliefs and ways of life. His answer is not hopeful. The dispute between Antonio and Shylock over charging interest reflects a deeper conflict about ultimate values that commerce and commercial law cannot resolve. “The law of Venice can force” the two men “to a temporary truce,” Bloom writes, “but in any crucial instance the conflict will re-emerge, and each will try to destroy the spirit of the law; for each has a different way of life which, if it were universalized within the city, would destroy that of the other. They have no common ground.”
Where such common ground does not exist, the law cannot create it. Law, even a neutral law of contracts, inevitably requires judgment: Which agreements should be enforced, and which should not? And judgment inevitably depends on the values people bring to the law from the wider culture. Where people share values, law does a tolerably good job resolving their disputes. One party wins and the other loses, but both can accept the legitimacy of the system. Where moral divisions run deep and the stakes are high, this is not possible. Law alone cannot persuade people to accept decisions that violate their most basic sense of right and wrong.
2021 has been another productive year for the Center. We celebrated our 10th anniversary (postponed for one year by Covid) with an event for alumni and supporters at the Metropolitan Club, expanded the Legal Spirits podcast series to new platforms, discussed Augustine and Shakespeare in our Reading Society, and continued to produce scholarship and opinion essays on law and religion issues in the news. You can read all about it in our annual year-end message, below. Happy Holidays!