Posted on by Mark Movsesian

Rediscovering Conservatism

One of the questions we addressed in the first meeting of our Tradition Project back in 2016 was this: is it possible to speak of an American conservatism? Isn’t what we call conservatism in America really just classical liberalism, a philosophy committed to individual rights, the free market, and a limited state that maintains neutrality with respect to religion and other big issues? In a new book from Regnery, Conservatism: A Rediscovery, Yoram Hazony (Edmund Burke Foundation) argues that American conservatism and classical liberalism are two separate things. Here’s the publisher’s description:

The idea that American conservatism is identical to “classical” liberalism—widely held since the 1960s—is seriously mistaken.

The award-winning political theorist Yoram Hazony argues that the best hope for Western democracy is a return to the empiricist, religious, and nationalist traditions of America and Britain—the conservative traditions that brought greatness to the English-speaking nations and became the model for national freedom for the entire world.

Conservatism: A Rediscovery explains how Anglo-American conservatism became a distinctive alternative to divine-right monarchy, Puritan theocracy, and liberal revolution. After tracing the tradition from the Wars of the Roses to Burke and across the Atlantic to the American Federalists and Lincoln, Hazony describes the rise and fall of Enlightenment liberalism after World War II and the present-day debates between neoconservatives and national conservatives over how to respond to liberalism and the woke left.

Going where no political thinker has gone in decades, Hazony provides a fresh theoretical foundation for conservatism. Rejecting the liberalism of Hayek, Strauss, and the “fusionists” of the 1960s, and drawing on decades of personal experience in the conservative movement, he argues that a revival of authentic Anglo-American conservatism is possible in the twenty-first century.

Posted on by L&R Forum

Legal Spirits Episode 042: Two Blockbuster Decisions at SCOTUS

The October 2021 term has ended with a bang. In this episode, we discuss the Court’s rulings in two significant church-and-state cases: Carson v. Makin, the Maine school funding case, and Kennedy v. Bremerton School District, the case of the football coach who prayed at the 50-yard line. We explain how the Court ruled in these cases, why the cases are so significant (goodbye to Lemon!), and what they leave open for future decisions. Listen in!

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Posted on by Mark Movsesian

Movsesian on Religious Exemptions

For those who are interested, the International Center for Law and Religion Studies at BYU has posted a video of my presentation at the 2022 Religious Freedom Annual Review on the Smith case and the future of religious exemptions. I argue that the Court’s decision last term in Fulton greatly limits Smith and that claimants should have an easier time winning religious exemptions as a result. Thanks again to the kind folks at BYU Law for hosting me!

Posted on by Marc O. DeGirolami

Universities Past and Future

In preparing for teaching a new course about freedom of speech and freedom of inquiry (about which more soon), I was reflecting on the nature and aims of the university–historically one of the central sites for the freedom of inquiry. Of course, this is a perennial topic and it is striking to see different conceptions and ideas of the university across time–stretching from the ancient model of learning (which one can read in the work of Plato and Aristotle, especially); to the medieval and renaissance Christian intellectual strongholds of Bologna, Paris, and others; to the 19th century modern period beginning with the German model and Cardinal Newman’s still-insightful “Idea of a University”; all the way to the 20th century model whose characteristic expositor remains John Dewey. And today, the university is under new pressures to change and become something else–something quite different from what it was even relatively recently.

It was in this spirit that I noticed and look forward to reading Professor William C. Kirby’s new book, Empires of Ideas: Creating the Modern University from German to American to China (Harvard UP). Professor Kirby, an expert on China, focuses his attention on the 19th and 20th centuries and on the future, which he sees as especially powerful in Chinese universities as American universities recede in importance.

The modern university was born in Germany. In the twentieth century, the United States leapfrogged Germany to become the global leader in higher education. Will China challenge its position in the twenty-first?

Today American institutions dominate nearly every major ranking of global universities. Yet in historical terms, America’s preeminence is relatively new, and there is no reason to assume that U.S. schools will continue to lead the world a century from now. Indeed, America’s supremacy in higher education is under great stress, particularly at its public universities. At the same time Chinese universities are on the ascent. Thirty years ago, Chinese institutions were reopening after the catastrophe of the Cultural Revolution; today they are some of the most innovative educational centers in the world. Will China threaten American primacy?

Empires of Ideas looks to the past two hundred years for answers, chronicling two revolutions in higher education: the birth of the research university and its integration with the liberal education model. William C. Kirby examines the successes of leading universities—The University of Berlin and the Free University of Berlin in Germany; Harvard, Duke, and the University of California, Berkeley, in the United States—to determine how they rose to prominence and what threats they currently face. Kirby draws illuminating comparisons to the trajectories of three Chinese contenders: Tsinghua University, Nanjing University, and the University of Hong Kong, which aim to be world-class institutions that can compete with the best the United States and Europe have to offer.

But Chinese institutions also face obstacles. Kirby analyzes the challenges that Chinese academic leaders must confront: reinvesting in undergraduate teaching, developing new models of funding, and navigating a political system that may undermine a true commitment to free inquiry and academic excellence.

Posted on by L&R Forum

Around the Web

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

  • In Carson v. Makin, the U.S. Supreme Court held that Maine’s tuition program, which pays tuition to out-of-district public or private high schools for students whose districts do not operate a high school, but which requires participating schools to be nonsectarian, violates the Free Exercise Clause. 
  • In Arkansas Times LP v. Waldrip, the Eighth Circuit upheld Arkansas’ law requiring public contracts to include a certification from the contractor that it will not boycott Israel. 
  • In In re Marriage of Olsen, a Colorado state appellate court held that the district court erred by considering a wife’s religious belief that pre-embryos are human lives when settling a dispute between a husband and wife over the disposition of their cryogenically frozen pre-embryos after their divorce. 
  • In Catholic Diocese of Jackson, Mississippi v. DeLange, the Mississippi Supreme Court held that the ecclesiastical abstention doctrine prevents Mississippi courts from adjudicating wrongful termination, defamation, and intentional infliction of emotional distress claims brought by the former finance officer of the diocese. 
  • South Carolina Governor Henry McMaster has signed H4776, the Medical Ethics and Diversity Act. The new law provides, in part, that religiously objecting medical practitioners, healthcare institutions, and healthcare payers have the right not to participate in or pay for any health care service which violates the practitioner’s or entity’s conscience. 
  • In Yalçin v. Turkey, the European Court of Human Rights, in a Chamber Judgment, held that Turkey violated Article 9 (freedom of religion and belief) of the European Convention on Human Rights by refusing to make a room available for congregational Muslim Friday prayers at a high-security prison. 
  • France’s highest administrative court, the Council of State, held that the city of Grenoble cannot permit Muslim women to wear the full-length “burkini” bathing suit in its municipal swimming pools. The court stated that doing so would compromise principles of religious neutrality and “the equal treatment of users.” 
Posted on by Mark Movsesian

Our Credentialed Court

Earlier this year, Encounter Books published a new history of the membership of the Supreme Court from its first years to today, The Credentialed Court, by University of Tennessee Law Professor Benjamin H. Barton. Barton points out that the current membership is historically narrow in terms of life experience. All justices but one have gone to Ivy League law schools; most have been lower court judges; an increasing number are former law clerks. Nothing wrong with any of that–but perhaps something is lost when the justices’ backgrounds are so circumscribed and similar. For example, do the backgrounds of the justices influence their work in religion clause cases? It’s hard to see why that would not be the case. Would the Court’s jurisprudence over the last 50 years have looked different with the graduate of an evangelical college on the bench–or a yeshiva or madrassa?

Looks very interesting. Here’s the publisher’s description:

The Credentialed Court starts by establishing just how different today’s Justices are from their predecessors. The book combines two massive empirical studies of every Justice’s background from John Jay to Amy Coney Barrett with short, readable bios of past greats to demonstrate that today’s Justices arrive on the Court with much narrower experiences than they once did. Today’s Justices have spent more time in elite academic settings (both as students and faculty) than any previous Courts. Every Justice but Barrett attended either Harvard or Yale Law School, and four of the Justices were tenured professors at prestigious law schools. They also spent more time as Federal Appellate Court Judges than any previous Courts. These two jobs (tenured law professor and appellate judge) share two critical components: both jobs are basically lifetime appointments that involve little or no contact with the public at large. The modern Supreme Court Justices have spent their lives in cloistered and elite settings, the polar opposite of past Justices.

The current Supreme Court is packed with a very specific type of person: type-A overachievers who have triumphed in a long tournament measuring academic and technical legal excellence. This Court desperately lacks individuals who reflect a different type of “merit.” The book examines the exceptional and varied lives of past greats from John Marshall to Thurgood Marshall and asks how many, if any, of these giants would be nominated today. The book argues against our current bookish and narrow version of meritocracy. Healthier societies offer multiple different routes to success and onto bodies like our Supreme Court.

Posted on by L&R Forum

Around the Web

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

  • The Ninth Circuit heard oral arguments in Fallon Paiute-Shoshone Tribe v. U.S. Department of the Interior. The arguments come after a Nevada federal district court rejected a claim by the Fallon Paiute-Shoshone Tribe that the construction of a geothermal facility would violate their rights under the Religious Freedom Restoration Act. 
  • In Colorado Springs Fellowship Church v. Williams, the Tenth Circuit rejected a church’s challenge to prison rules that barred it from sending DVDs directly to inmates. 
  • In Dorman v. Chaplain’s Office BSO, the Eleventh Circuit upheld the procedures used by the Broward County, Florida jail, which required inmates to register 45 days in advance in order to participate in Passover services and meals. 
  • In Yu Pride Alliance v. Yeshiva University, a New York state trial court held that New York City’s public accommodation law requires Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. The court rejected the University’s claim that it is exempt from coverage as a religious corporation incorporated under the education law. 
  • In Petro v. Platkin, a New Jersey state appellate court dismissed constitutional challenges to New Jersey’s Medical Aid in Dying for the Terminally Ill Act. The court, among other things, rejected Plaintiffs’ First Amendment Free Exercise Claim, finding that the statute is a neutral law of general applicability. 
  • In Teliatnikov v. Lithuania, the European Court of Human Rights in a Chamber Judgment held that Lithuania violated Article 9 (freedom of thought, conscience, and religion) of the European Convention on Human Rights when it refused to grant a Jehovah’s Witness deacon alternative service under civilian control. 
Posted on by Marc O. DeGirolami

On the Intellectual and Moral Virtues

Dean John Garvey, longtime President of Catholic University of America as well as a noted First Amendment scholar, is retiring this year from his position at CUA. He has this new book, The Virtues (Catholic University of America Press), collecting essays and speeches over the years that reflect on the practical and intellectual virtues. Something particularly interesting is Garvey’s Aristotelian emphasis on habit, and the importance of habituation to the virtues.

An ancient question asks what role moral formation ought to play in education. It leads to such questions as, do intellectual and moral formation belong together? Is it possible to form the mind and neglect the heart? Is it wise? These perennial questions take on new significance today, when education — especially, higher education — has become a defining feature in the lives of young people.

Throughout his more than 40 years in academia, John Garvey has reflected on the relationship between intellectual and moral formation, especially in Catholic higher education. For 12 years as the President of The Catholic University of America, he made the cultivation of moral virtue a central theme on campus, highlighting its significance across all aspects of University culture, from University policy to campus architecture.

During his two decades of presiding at commencement exercises, first as Dean of Boston College Law School and then as President of The Catholic University of America, Garvey made a single virtue the centerpiece of his remarks each year. The Virtues is the fruit of those addresses. More reflective than analytical, its purpose is to invite conversation about what it means to live well.

Following Catholic tradition, The Virtues places the theological virtues of faith, hope, and love at the center of the moral life, and the cardinal virtues — justice, temperance, fortitude, and prudence — with them. Alongside these major virtues, Garvey considers a collection of “little virtues,” habits that assist and accompany us in small but important ways on the path to goodness.

Though he treats each virtue individually, a common thread unites his reflections. “The intellectual life depends on the moral life,” Garvey writes. “Without virtue we cannot sustain the practices necessary for advanced learning. In fact, without virtue, it’s hard to see what the purpose of the university is. Learning begins with love (for the truth). If we don’t have that, it’s hard to know why we would bother with education at all.” The Virtues invites its readers, especially students, to appreciate that the cultivation of virtue is indispensable to success, academic or otherwise, and more importantly, essential to their ultimate aim, a life well lived.

Posted on by Mark Movsesian

A New Biography of Jefferson

The figure of Thomas Jefferson looms large in American law and religion. A man of immense public achievement and great personal failings, at once candid and disingenuous, familiar and remote, his approach to church and state was influential and controversial in his own time and in ours–especially at the Supreme Court, which has occasionally treated Jefferson’s separationism as the correct theory of the Establishment Clause. A new biography from Yale, Thomas Jefferson: A Biography of Spirit and Flesh, focuses on Jefferson’s spiritual inner life. The author is historian Thomas Kidd (Baylor). Here’s the publisher’s description:

Thomas Jefferson was arguably the most brilliant and inspiring political writer in American history. But the ethical realities of his personal life and political career did not live up to his soaring rhetoric. Indeed, three tensions defined Jefferson’s moral life: democracy versus slavery, republican virtue versus dissolute consumption, and veneration for Jesus versus skepticism about Christianity.

In this book Thomas S. Kidd tells the story of Jefferson’s ethical life through the lens of these tensions, including an unapologetic focus on the issue where Jefferson’s idealistic philosophy and lived reality clashed most obviously: his sexual relationship with his enslaved woman Sally Hemings. In doing so, he offers a unique perspective on one of American history’s most studied figures.

Posted on by Mark Movsesian · 1 Comment

Next Month in Rome: “Liberalism’s Limits”

Next month in Rome, we’ll celebrate 10 years of cooperation with our colleagues at Universita LUMSA with the latest in our conference series on comparative law and religion: “Liberalism’s Limits: Religious Exemption and Hate Speech.” (Hard to believe we’ve been doing this for 10 years)! The conference description is below and details are here: If you’re in Rome, please stop by and say hello!

Liberal democracies historically have prized autonomy and freedom as fundamental political commitments. In doing so, they also have emphasized the individual’s freedom of religion and freedom of speech as sitting at the core of their political systems. Yet in religious exemption — the right of individuals to receive an accommodation from complying with generally applicable law on the basis of religious scruple — and in what some in these polities call “hate speech” – speech conveying deeply insulting, vilifying, discriminatory views against a target group – liberal regimes face serious challenges to their own core principles. This conference will examine the problems posed by these issues for the continuing viability of liberalism in Western democracies.