The title of my new draft paper, developing work I’ve been at for the last 3-4 years, incorporating some of the decisions from this term, and setting out some justifications for this method of doing constitutional law. Here is the abstract:
Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”
This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples of traditionalism within this larger, longstanding interpretive method. Contrary to many claims, there is little that is entirely new or unexpected, other than the Court’s more explicit embrace of traditionalism this term than in the past. The paper then distinguishes traditionalism from originalism, focusing especially on what some originalists have called “liquidation.” Finally, it raises and considers one comparatively straightforward and two more difficult problems for traditionalism: (a) the problem of selecting the operative “level of generality” for any tradition; (b) the problem of tradition’s moral justification, offering possibilities based on the connection between enduring practices and (1) human desires, (2) virtues or legal excellences, or (3) natural law determinations; and (c) the problem of traditionalism’s politics.
One of my summer projects–still hatching–concerns the idea of “drift” in what is regarded as prototypically “public” and “private” law. That is, the tendency of what was regarded as public law to be privatized, and the tendency of private law to become a matter of public concern. For example, law and religion is traditionally understood as public law in its constitutional dimensions–the law that concerns the state’s relationship to the citizenry respecting religious questions. But there are also features of law and religion that may be considered private law: contractual arrangements based on religious law, for example, and others. Of course, the categories of public and private have been famously attacked by legal realists and their descendants as empty formalisms. In more recent years, however, scholars coming from a variety of perspectives have revived and defended the distinction. In tort law, for example, John Goldberg and Benjamin Zipursky have done so in their book (and prior work), Recognizing Wrongs, and others as well in what is called the “new private law” perspective.
From his own distinctive, Kantian perspective, so has the eminent private law theorist Ernest J. Weinrib. Here is an important new book on themes he has been developing for many years, and which go very much to the private/public division: Reciprocal Freedom: Private Law and Public Right (OUP).
Reciprocal Freedom elucidates the relationship between private law and the state, presenting reciprocal freedom as the normative idea underlying a legal order in which private law occupies a distinctive place. Weinrib develops a set of interconnected conceptions of private law, corrective justice, rights, ownership, the role of legal institutions, distributive justice, the relationship of constitutional rights to private law, and the rule of law.
The book is explicitly Kantian in inspiration; it presents a non-instrumental account of law that is geared to the juridical character of the modern liberal state. Combining legal and philosophical analysis, it offers a sequenced and legally informed argument for understanding law as necessary to our co-existence as free beings.
Here are some important law-and-religion news stories from around the web:
A petition for certiorari has been filed with the U.S. Supreme Court in Groff v. DeJoy. In the case, the Third Circuit held that accommodating a Sunday sabbath observer by allowing him not to report for work on Sunday would cause an “undue hardship” to the U.S. Postal Service. Therefore, the court held that failure to grant the requested accommodation did not violate Title VII.
In In the Interest of C.C., the Georgia Supreme Court gave guidance to a juvenile court on how to determine whether parents’ objections to vaccinating their children are based on a sincerely held religious belief. The court said in part: “Ultimately, the juvenile court must determine whether the Chandlers’ religious objection to the vaccination of their children is ‘truly held.’ The court should ‘sh[y] away from attempting to gauge how central a sincerely held belief is to the believer’s religion.’ And it must bear in mind that ‘a belief can be both secular and religious. The categories are not mutually exclusive.’ “
In Toor v. Berger, the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine’s uniform and grooming policies during recruit training while their case continues to be litigated. Plaintiffs argue that denying accommodation of their religious practices violates RFRA, the Free Exercise Clause, and the Equal Protection Clause. The court held that even if plaintiffs have shown a likelihood of success on the merits and irreparable injury, the balance of equities and the overall public interest favors the military at this preliminary stage of proceedings.
In Bey v. Sirius-El, a New York federal district court dismissed a suit seeking damages, injunctive relief, and criminal prosecution of defendants for barring plaintiff from attending the Brooklyn Moorish Science Temple in person. Plaintiff was barred because of the potential for a conflict between her and a “competing love interest” who has also been attending services. The court dismissed plaintiff’s free exercise claims because she did not allege that any state action was involved.
In Chabad of Prospect, Inc. v. Louisville Metro Board of Zoning Adjustment, a Kentucky federal district court dismissed a suit brought against zoning officials by a synagogue that was denied a conditional use permit to use a home it purchased for religious services. When the property was put up for sale, zoning rules allowed its use for religious purposes. However, before plaintiff purchased the property, the city removed that provision and required a conditional use permit. The court held that plaintiff’s § 1983 claim alleging First Amendment violations was barred by the statute of limitations. Additionally, the court held that plaintiff failed to state a claim under RLUIPA.
In Miller v. Austin, a Wyoming federal district court dismissed on standing and ripeness grounds a suit by two Air Force sergeants who face discharge because of their refusal on religious grounds to receive the COVID vaccine.
The Ja’fari School represents the principal method of jurisprudence in Shi’a Islam and the official source of Islamic law under the Iranian Constitution. It is comparatively less well known among students of Islamic law in the West, who tend to focus on the four Sunni schools of fiqh. A new book from Harvard, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law, offers an intellectual history of the school’s founder, the eighth century scholar Jaʿfar al-Ṣādiq. The author is Near Eastern Studies Professor Hossein Modarressi (Princeton). Here is the description from the publisher’s website:
Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law examines the main characteristics of the legal thought of Imam Jaʿfar al-Ṣādiq, a preeminent religious scholar jurist of Medina in the first half of the second century of the Muslim calendar (mid-eighth century CE). Numerous works in different languages have appeared over the past half century to introduce this school of Islamic law and its history, legal theory, and substance in contexts of Shīʿī law.
While previous literature has focused on the current status of the school in its developed and expanded form, this book presents an intellectual history of how the school began. The Jaʿfarī school emerged within the general legal discourse of the late Umayyad and early Abbasid periods, but was known to differ in certain approaches from the other main legal schools of this time. Namely, the Jaʿfarī school expanded the tools for legal interpretation generally and contracts specifically, to a degree unmatched by any of its counterparts in the Muslim legal tradition. In addition to sketching the origins of the school, the book examines Jaʿfar al-Ṣādiq’s interpretive approach through detailing his position on a number of specific questions, as well as the legal canons, presumptions, and other interpretive tools he adopted.
The British Commonwealth is an association of countries that share a connection to the British Empire, often as former colonies. The common law of these countries all has this common root or family resemblance, and is therefore in many ways similar, notwithstanding specific national differences that have developed with independence from the Empire. Here is a new book concerning the law and religion doctrine of these nations: Law and Religion in the Commonwealth: The Evolution of Caselaw (Bloomsbury), edited by Renae Barker, Paul Babie, and Neil Foster.
This book examines law and religion from the perspective of its case law.
Each chapter focuses on a specific case from a Commonwealth jurisdiction, examining the history and impact of the case, both within the originating jurisdiction and its wider global context.
The book contains chapters from leading and emerging scholars from across the Commonwealth, including from the United Kingdom, Canada, Australia, Pakistan, Malaysia, India and Nigeria.
The cases are divided into four sections covering: – Foundational Questions in Law and Religion – Freedom of Religion around the Commonwealth – Religion and state relations around the Commonwealth – Rights, Relationships and Religion around the Commonwealth.
Like religion itself, the case law covers a wide spectrum of life. This diversity is reflected in the cases covered in this book, which include: – Titular Roman Catholic Archbishop of Kuala Lumpur v Home Minister on the use of the Muslim name for God by non-Muslims in Malaysia – The Church of the New Faith v Commissioner of Pay-roll Tax (Vic) which determined the meaning of religion in Australia – Eweida v UK which clarified the application of Article 9 of the European Convention on Human Rights – R v Big M Drug Mart on the individual protections of religious freedom under the Canadian Charter of Rights.
The book examines how legal disputes involving religion are among the most contested in the courts and shows that in these cases, passions run high and the outcomes can have significant consequences for all involved.
Here are some important law-and-religion news stories from around the web:
In Fox v. City of Austin, a Christian minister who has been a volunteer fire department chaplain filed suit in a Texas federal district court alleging that his free speech and free exercise rights were violated when the fire department terminated him as chaplain because of his social media posts.
In Lowe v. Mills, a Maine federal district court rejected challenges by seven healthcare workers to Maine’s COVID vaccination requirement for healthcare workers. While medical exemptions to the requirement are available, no such exemption applies to religion. The court rejected the plaintiffs’ Title VII religious discrimination and free exercise claims.
In People v. Calvary Chapel, San Jose, a California state appellate court annulled contempt orders imposed by a trial court and reversed the trial court’s imposition of monetary sanctions, which resulted from a church’s refusal to comply with state COVID public health orders.
The Department of Agriculture issued a Guidance clarifying that a Title IX exemption is available for religious educational institutions if there is a conflict between Title IX and a school’s governing religious tenets.
As part of a settlement with the national organization, American Atheists, Arkansas state Senator Jason Rapert will have to unblock his atheist constituents from his social media account. Senator Rapert is also required to pay more than $16,000 to American Atheists for costs related to the lawsuit.
The Law Reform Commission of Western Australia sent to Parliament its Final Report on its Review of the Equal Opportunity Act 1984. The Report makes 163 recommendations for changes in Western Australia’s anti-discrimination laws. In connection with the Act’s ban on discrimination based on religious conviction, the Report’s Recommendation 51 provides updates on how “religious conviction” should be defined in the Act.
This month, the University of Chicago Press releases a new book by our friend, Vincent Phillip Munoz (Notre Dame), Religious Liberty and the American Founding. A few years ago, we hosted an online symposium on Phillip’s work on the Founder’s understanding of the natural right of religious liberty–what the right entailed and what it did not entail–and his new book continues to address that subject. Looks very interesting. The publisher’s description is below. Congrats, Phillip!
An insightful rethinking of the meaning of the First Amendment’s protection of religious freedom.
The Founders understood religious liberty to be an inalienable natural right. Vincent Phillip Muñoz explains what this means for church-state constitutional law, uncovering what we can and cannot determine about the original meanings of the First Amendment’s Religion Clauses and constructing a natural rights jurisprudence of religious liberty.
Drawing on early state constitutions, declarations of religious freedom, Founding-era debates, and the First Amendment’s drafting record, Muñoz demonstrates that adherence to the Founders’ political philosophy would lead neither to consistently conservative nor consistently liberal results. Rather, adopting the Founders’ understanding would lead to a minimalist church-state jurisprudence that, in most cases, would return authority from the judiciary to the American people. Thorough and convincing, Religious Liberty and the American Founding is key reading for those seeking to understand the Founders’ political philosophy of religious freedom and the First Amendment Religion Clauses.
The Australian Journal of Law and Religion is requesting submissions for its February 2023 Symposium on Theology and Jurisprudence:
Paper Proposal: Paper proposals (up to 200 words) and a brief biography must be submitted no later than November 1, 2022.
Paper Submission: Papers should be completed or at a work-in-progress stage suitable for distribution to other participants by February 1, 2023 and should not be published or currently under consideration elsewhere. Presenters will have twenty minutes to present their paper with time for comments and questions.
Accepted Papers: Authors of accepted papers will have the opportunity to present them at the Symposium. Presented papers may also be considered for publication in a special edition of the Australian Journal of Law and Religion.
Location: ALS will host the Symposium. Further details and a schedule will be provided.
Contact: Please email paper proposals and any questions to Dr. Constance Lee at c.y.lee@cqu.edu.
I recently had occasion to speak with the curator of an art museum at a university, who told me that her job has become a good deal more complicated by fundamental questions about the nature and function of museums in our world. Should museums exist any longer? By what right do museums continue to hold the artifacts that they do, seeing as many now argue that they hoard ill-gotten gains–the products of unjust exchanges, exploitative deals, or worse. Should museums divest themselves of their collections and send their inventory back to the rightful possessors. But who are the rightful possessors? How does one distinguish between situations like the Elgin Marbles, which many say should be returned to Greece, and other art that is now housed at The British Museum, most of which has no connection at all with Great Britain? Selling off these holdings won’t help, since the art will then sit in a private collector’s property. Don’t the people have a right to see and enjoy the great glories of civilization? But why the people of privileged nations that had the political and power and wherewithal to create institutions for that purpose, and the military and cultural power to take what they wanted? Would it solve things to turn museums into centers for perpetual temporary displays, as artwork moves nomadically here and there, from place to place, so that more of humanity can see it than now does?
There is an obvious relationship with the various problems of the legitimacy of property more generally, but I was thinking about the institution of the museum as a metaphor for the new questions that now confront other institutions. Institutions like museums are custodians of traditions of excellence, beauty, knowledge, and truth. Other institutions (including the institutions of law) have a similar custodial role. What happens when the fundamental premises of those institutions comes into question–when their very existence is attacked as illegitimate? How should they respond–and in particular, what should they aim to be the steward of (i.e., what should they want to conserve for posterity), and for whom? For what sort of shared culture do they continue to be institutions?
Here is a new book making what looks like an elegant pitch for the continuing relevance of the museum as institutional marker of a shared culture: Why the Museum Matters (Yale University Press) by Daniel H. Weiss, the President and CEO of the Met.
A powerful reflection on the universal art museum, considering the values critical to its history and anticipating its evolving place in our cultural future
Art museums have played a vital role in our culture, drawing on Enlightenment ideals in shaping ideas, advancing learning, fostering community, and providing spaces of beauty and permanence. In this thoughtful and often personal volume, Daniel H. Weiss contemplates the idea of the universal art museum alongside broad considerations about the role of art in society and what defines a cultural experience. The future of art museums is far from secure, and Weiss reflects on many of the difficulties these institutions face, from their financial health to their collecting practices to the audiences they engage to ensuring freedom of expression on the part of artists and curators.
In grappling with these challenges, Weiss sees a solution in shared governance. His tone is one of optimism as he looks to a future where the museum will serve a greater public while continuing to be a steward of culture and a place of discovery, discourse, inspiration, and pleasure. This poignant questioning and affirmation of the museum explores our enduring values while embracing the need for change in a rapidly evolving world.
Here are some important law-and-religion news stories from around the web:
In Hernandez v. City of Phoenix, the Ninth Circuit held that a Phoenix police officer’s social media posts disparaging Muslims related to a public concern and potentially qualified as protected speech under the First Amendment. The Ninth Circuit remanded the case for further factual development.
In Sabra v. Maricopa County Community College District, the Ninth Circuit held that a Community College professor was entitled to qualified immunity in a suit against him claiming that his online module on Islamic terrorism in a World Politics course violated plaintiffs’ Establishment Clause and Free Exercise rights. Plaintiffs claimed the module’s primary message was disapproval of Islam and that the end-of-module quiz forced a Muslim student to disavow his religion by choosing answers reflecting a radical interpretation of Islam.
The Ninth Circuit heard oral arguments in Fellowship of Christian Athletes v. San Jose Unified School District Board of Education. In the case, a California federal district court upheld a high school’s non-discrimination policy for recognized student groups that precluded Fellowship of Christian Athletes from requiring its leaders to agree with and live in accordance with the group’s Christian beliefs.
In Katz v. New York City Housing Preservation & Development, a New York federal district court rejected Free Exercise and Affordable Housing Act claims brought by an Orthodox Jewish family whose applications for an affordable housing unit were denied because their family size exceeded the apartments’ maximum occupancy limit. Plaintiffs claim that their religious beliefs require them to have a large family.
In Doe v. Catholic Relief Services, a Maryland federal district court granted summary judgment in favor of plaintiff who was denied spousal health insurance coverage for his same-sex husband. The court rejected a church-autonomy defense and held that the Catholic Relief Services violated Title VII. The court also held that the exemption in Title VII for religious organizations only applies to discrimination by them on the basis of religion and that RFRA does not provide a defense because it applies only to claims against the government. The court went on to find a violation of the federal and state Equal Pay Acts and ordered certification to the state court of a question of coverage by Maryland’s Fair Employment Practice Act.
In In re Kelly, the Delaware Supreme Court accepted the report of its Board of Professional Responsibility and involuntarily transferred a state bar member to disability inactive status. The attorney’s incoherent court filings, many containing religious references, led to the proceedings to move respondent to inactive status. While respondent claimed that the proceedings violated her free exercise rights, the court held that respondent’s submissions led to the proceeding – not her religious or political beliefs, as she contends.
