New from Munoz on Religious Liberty and the Founding

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.

Call for Papers: Australian Journal of Law & Religion

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completed or at a work-in-progress stage suitable for distribution to other participants by February 1, 2023 and should not be published or currently under consideration elsewhere.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

Museum as Metaphor for the Troubled Institution

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.

Around the Web

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. 

A New Work on the Ministerial Exception

Ten years ago, in Hosanna-Tabor, the U.S. Supreme Court ruled that the First Amendment’s Religion Clauses prohibit the state from interfering with the decisions of religious organizations with respect to the employment of “ministers.” In two more recent cases, Our Lady of Guadalupe School and Biel, the Court returned to the question of which employees, exactly, qualify as ministers, but did not announce a clear test. The debate about how far the exception extends thus seems certain to continue. A forthcoming book from Routledge, The Church and Employment Law, by John Duddington (Cardiff), considers the question and takes a comparative approach to the subject. The book is the latest in the valuable ICLARS Series on Law and Religion. Here is the description from Routledge:

This book examines the current law on the employment status of ministers of religion and suggests reforms in this area of the law to meet the need for ministers to be given a degree of employment protection. The work considers the constant theme in Christian history that the clergy should not be subject to the ordinary courts and asks whether this is justified with the growth of areas such as employment law. The work questions whether it is possible to arrive at a satisfactory definition of who is a minister of religion and, along with this, who would be the employer of the minister if there was a contract of employment. Taking a comparative perspective, it evaluates the case law on the employment status of Christian and non-Christian clergy and assesses whether this shows any coherent theme or line of development. The work also considers the issue of ministerial employment status against the background of the autonomy of churches and other religious bodies from the State, together with their ecclesiology.  The book will be of interest to academics and researchers working in the areas of law and religion, employment law and religious studies, together with both legal practitioners and human resources practitioners in these areas.

A New Account of Tradition, its Erosion, and its Retrieval

The idea of tradition and traditions has been a major and ongoing scholarly interest of our Center over the years, particularly in our Tradition Project, its conferences, and its scholarly output. And we have some new projects cooking that will extend the Project in new directions. Here is a new book that appears to involve some of the themes we also have considered: Confusion in the West: Retrieving Tradition in the Modern and Post-Modern World (Cambridge UP) by historians Anna Rist and John Rist.

In their trenchant panoramic overview – ranging from antiquity to the present-day – John and Anna Rist write with authority and ennui about nothing less than the loss of the foundational culture of the West. The authors characterize this culture as the ‘original tradition’, viewing its erosion as one which has led to anxiety about the entire value of Western thought. The causes of the disintegration are discussed with an intensity rare in academe. Critics of modernity ordinarily concentrate on the Enlightenment and the book certainly offers deep analysis of Enlightenment thought. But it goes further. Thus the cruelty of modern totalitarianism is now depicted as in the spirit of the French Revolution and its implacable hostility to a vanished primordial heritage, while scientism, bureaucracy and consumerism appear as the only rivals to a threatening nihilism. The book argues that Western thought has created a set of conflicting moral and spiritual customs: to the detriment of coherence, in individual minds as in society and culture.

Around the Web

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

  • In Taylor v. Nelson, the Fifth Circuit held that Texas prison authorities who confiscated a female inmate’s hijab that exceeded the size permitted by prison policies could claim qualified immunity in a suit for damages against them. The court held that Plaintiff failed to identify a clearly established right that officials violated and that reasonable officials would not have understood that enforcing the policy on hijabs was unconstitutional. 
  • The Fifth Circuit recently heard oral arguments in Franciscan Alliance v. Becerra. In the case, a Texas federal district court permanently enjoined enforcing the anti-discrimination provisions of the Affordable Care Act and implementing regulations against Christian health care providers and health plans in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions. 
  • A class action Settlement Agreement was recently filed in an Illinois federal district court in Doe 1 v. NorthShore University HealthSystem. The suit was brought on behalf of approximately 523 employees who requested, but were denied, a religious exemption or accommodation from the hospital system’s COVID vaccination mandate. The hospital system will pay $10,330,500 in damages if the court approves the settlement. 
  • In Archdiocese of Milwaukee v. Wisconsin Department of Corrections, a Wisconsin trial court issued a declaratory judgment and permanent injunction requiring the Wisconsin prison system to allow Catholic clergy the opportunity to conduct in-person religious services in state correctional institutions. While the clergy were initially restricted due to COVID-19 concerns, the court concluded that once the prison system allowed some external visitors to enter correctional institutions, it was required to honor the clergy’s statutory privilege to do so ­– and refusal to do so violated Plaintiff’s free exercise rights under the Wisconsin Constitution. 
  • Seven clergy members in Florida have filed lawsuits contending that Florida’s 15-week abortion ban violates their free exercise, free speech, and Establishment Clause rights. 
  • France’s Constitutional Council last month, in Union of Diocesan Associations of France and othersupheld the constitutionality of several provisions of law governing religious institutions in France. The Council upheld the requirement that a religious organization must register with a governmental official in order to enjoy benefits available specifically to a religious association. The Council found that this did not infringe freedom of association and did not hinder the free exercise of religion. 

The New Thoreaus

I’ve just posted a new draft essay, “The New Thoreaus,” to SSRN. The essay, which will appear in a forthcoming symposium in the Loyola University Chicago Law Journal, discusses the Rise of the Nones and argues that community is crucial to defining religion for legal purposes. Abstract below. Comments welcome!

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the 19th Century Transcendentalist, Henry David Thoreau, would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly 66 million people—now claim, like Thoreau, to follow our own, idiosyncratic spiritual paths. The New Thoreaus already have begun to appear in the cases, including recent vaccine mandate challenges, and courts will increasingly face the question whether purely idiosyncratic beliefs and practices qualify as religious for legal purposes. In this essay, I argue that Yoder’s insight was basically correct: the existence of a religious community is a crucial factor in the definition of religion. Religion cannot mean an exclusively communal phenomenon; a categorical rule would slight a long American tradition of respecting individual religious conscience and create difficult line-drawing problems. Nonetheless, the farther one gets from a religious community, the more idiosyncratic one’s spiritual path, the less plausible it is to claim that one’s beliefs and practices are religious, for legal purposes.

A New Book on Roger Scruton

Back in 2017, we were fortunate enough to host Sir Roger Scruton here at the Center, when he delivered the keynote address and participated in workshops at the second meeting of the Tradition Project, on culture and citizenship. (A video of Sir Roger’s remarks is available here). Later this year, Palgrave Macmillan will release Politics and Art in Roger Scruton’s Conservative Philosophy, a new study of Sir Roger’s philosophical legacy, covering subjects as diverse as politics, art, music, and religion–all of which Sir Roger discussed that night in 2017, as I remember. The author is philosopher Ferenc Horcher (Hungarian Academy of Sciences). Here’s the publisher’s description:

This book covers the field of and points to the intersections between politics, art and philosophy. Its hero, the late Sir Roger Scruton had a longstanding interested in all fields, acquiring professional knowledge in both the practice and theory of politics, art and philosophy. The claim of the book is, therefore, that contrary to a superficial prejudice, it is possible to address the philosophical issues of art and politics in the same oeuvre, as the example of this Cambridge-educated analytical philosopher proves.

Accordingly, the book has a bold thesis on the general, theoretical level, mapping the connections between politics, art and philosophy. However, it also has a pioneering commitment on the level of the particular, offering the first full-length study into the philosophical legacy of Roger Scruton, probably the most important British conservative philosopher of the late 20th and the first decades of the 21st century. It also allows reader to look into the philosopher’s fascination with Central European art and culture. Finally, it also provides a daring analysis of the late Scruton’s metaphysical inspirations, connecting the arts, and especially music, with religion and the bonds of love.

On MacIntyre

Over the summer, I’ve been reading a good deal of Alasdair MacIntyre’s work for a project on the moral authority of practices. Here is a new translation (by our friend, Nathan J. Pinkoski, with a foreword by Pierre Manent) of the brilliant French political theorist Émile Perreau-Saussine’s biography of MacIntyre. I’m sure it has lots to offer on both MacIntyre and Perreau-Saussine, a wonderful thinker in his own right who was taken from us too soon. The book is Alasdair MacIntyre: An Intellectual Biography (Notre Dame Press).

This award-winning biography, now available for the first time in English, presents an illuminating introduction to Alasdair MacIntyre and locates his thinking in the intellectual milieu of twentieth-century philosophy.

Winner of the prestigious 2005 Philippe Habert Prize, the late Émile Perreau-Saussine’s Alasdair MacIntyre: Une biographie intellectuelle stands as a definitive introduction to the life and work of one of today’s leading moral philosophers. With Nathan J. Pinkoski’s translation, this long-awaited, critical examination of MacIntyre’s thought is now available to English readers for the first time, including a foreword by renowned philosopher Pierre Manent.

Amid the confusions and contradictions of our present philosophical landscape, few have provided the clarity of thought and shrewdness of diagnosis as Alasdair MacIntyre. In this study, Perreau-Saussine guides his readers through MacIntyre’s lifelong project by tracking his responses to liberalism’s limitations in light of the human search for what is good and true in politics, philosophy, and theology. The portrait that emerges is one of an intellectual giant who comes to oppose modern liberal individualism’s arguably singular focus on averting evil at the expense of a concerted pursuit of human goods founded upon moral and practical reasoning. Although throughout his career MacIntyre would engage with a number of theoretical and practical standpoints in service of his critique of liberalism, not the least of which was his early and later abandoned dalliance with Marxism, Perreau-Saussine convincingly shows how the Scottish philosopher came to hold that Aristotelian Thomism provides the best resources to counter what he perceives as the failure of the liberal project. Readers of MacIntyre’s works, as well as scholars and students of moral philosophy, the history of philosophy, and theology, will find this translation to be an essential addition to their collection.