Around the Web

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

  • In Jones v. Shinn, the Ninth Circuit held that the district court should not have dismissed an inmate’s claim that his rights under RLUIPA were violated when prison authorities denied him access to four texts by Elijah Muhammad. However, the court affirmed the dismissal of Plaintiff’s First Amendment free exercise claim because the defendants showed the exclusion was reasonably related to a legitimate penological interest. 
  • A federal class action lawsuit has been filed in Phillips v. Rector and Visitors of the University of Virginia, alleging that the University of Virginia Health System violated free exercise and establishment clause provisions of the federal and state constitutions, as well as equal protection rights, in the manner in which it administered applications from employees for religious exemptions from its COVID vaccine mandate. 
  • In YU Pride Alliance v. Yeshiva University, a New York state appellate court affirmed a trial court’s decision that New York City’s public accommodation law requires Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance.
  • In Beaudoin v. Attorney General of British Columbia, the highest court in the Canadian province of British Columbia upheld 2020 and 2021 COVID orders of BC’s Provincial Health Officer that prohibited in-person worship services. The court concluded that the Gathering and Events Order did not violate §15 of the Charter of Rights of Freedoms, which protects the equality rights of the churches that were plaintiffs in the suit. The court also concluded that Plaintiffs’ religious freedom rights under §2 of the Charter were not infringed. 
  • In Tonchev v. Bulgaria, the European Court of Human Rights, in a Chamber Judgment, held that municipal officials in Bulgaria violated Article 9 of the European Convention on Human Rights when they circulated materials to schools containing hostile information about Christian evangelical churches. 
  • In Zemmour v. France, the European Court of Human Rights upheld France’s conviction of a journalist for inciting discrimination and religious hatred against the French Muslim community through anti-Muslim remarks he made on a 2016 television talk show. The Court found no violation of Article 10 of the European Convention on Human Rights protecting freedom of expression. 

Merry Christmas!

Merry Christmas to our readers! For the occasion, here’s a little something from the beginning of T.S. Eliot’s “Animula” (little soul), about the life of wonder of a child.

‘Issues from the hand of God, the simple soul’
To a flat world of changing lights and noise,
To light, dark, dry or damp, chilly or warm;
Moving between the legs of tables and of chairs,
Rising or falling, grasping at kisses and toys,
Advancing boldly, sudden to take alarm,
Retreating to the corner of arm and knee,
Eager to be reassured, taking pleasure
In the fragrant brilliance of the Christmas tree,
Pleasure in the wind, the sunlight and the sea;
Studies the sunlit pattern on the floor
And running stags around a silver tray;
Confounds the actual and the fanciful,
Content with playing-cards and kings and queens,
What the fairies do and what the servants say.

On Law and Love

“Love does no wrong to a neighbor,” the Apostle Paul wrote in Romans; “therefore, love is the fulfilling of the law.” We close out this year’s book notes with a collection of essays that explores the meaning of this Biblical admonition. Next week, Routledge releases Christianity, Ethics and the Law: The Concept of Love in Christian Legal Thought. The editors are law professors Zachary Calo (Hamad bin Khalifa University, Qatar), Joshua Neoh (Australian National University), and A. Keith Thompson (University of Notre Dame Australia). Looks very interesting. Here’s the publisher’s description:

This book examines how Christian love can inform legal thought. The work introduces love as a way to advance the emergent conversation between constructive theology and jurisprudence that will also inform conversations in philosophy and political theory.

Love is the central category for Christian ethical understanding. Yet, the growing field of law and religion, and relatedly law and theology, rarely addresses how love can shape our understanding of law. This reflects, in part, a common assumption that law and love stand in necessary tension. Love applies to the private and the personal. Law, by contrast, applies to the public and the political, realms governed by power. It is thus a mistake to envisage love as having anything but a negative relationship to law. This conclusion continues to govern Christian understandings of the meaning and vocation of law. The animating idea of this volume is that the concept of love can and should inform Christian legal thought. The project approaches this task from the perspective of both historical and constructive theology. Various contributions examine how such thinkers as Augustine, Aquinas, and Calvin utilised love in their legal thought. These essays highlight often neglected aspects of the Christian tradition. Other contributions examine Christian love in light of contemporary legal topics including civility, forgiveness, and secularism. Love, the book proposes, not only matters for law but can transform the terms on which Christians understand and engage it.

The book will be of interest to academics and researchers working in the areas of legal theory; law and religion; law and philosophy; legal history; theology and religious studies; and political theory.

Legal Spirits Episode 046: Sunday Closing Laws and New Year’s Eve

Last month, a federal court ruled that New York could constitutionally restrict the sale of alcohol when New Year’s falls on a Sunday, as it will this year. In our final podcast of 2022, we discuss this ruling and the Supreme Court’s longstanding view that Sunday alcohol restrictions and closing laws do not violate the Establishment Clause. How has the Court’s jurisprudence shaped the way Americans view Sundays? And what are the implications for religious freedom? Listen in–and Happy New Year!

Ethnic Cleaning Threatened in the South Caucasus

At First Things today, I have an essay on Azerbaijan’s blockade of Armenian Christians in the disputed region of Nagorno Karabakh this Advent. Things look grim, but the Armenians of Karabakh vow to hold on, notwithstanding the real threat of ethnic cleansing.

Here’s an excerpt:

Christians around the world are marking Advent, the period in the church calendar that anticipates Christmas. People are decorating their homes and schoolkids are rehearsing their lines for annual Christmas pageants. It’s a happy, forward-looking time. 

In the South Caucasus this Advent, though, Christians face the threat of ethnic cleansing. Last week, the Azeri government blocked the road that links the disputed region of Nagorno-Karabakh, home to 120,000 Armenian Christians, to the outside world. No supplies have reached Karabakh for days. The local government has rationed food and essential goods and services. Schools have closed. Hospitals warn that they will soon run out of critical medication, but Azerbaijan has indicated that it will shoot down any aircraft that attempt to deliver humanitarian aid. For good measure, Azerbaijan also temporarily cut off the only natural gas pipeline that supplies the region—in the middle of winter, when temperatures are below freezing.

Azerbaijan, which is Turkish in culture and 97 percent Muslim, wishes to end the Armenian Christian presence in Karabakh and force Armenians to cede territory in Armenia proper for a land bridge to Azerbaijan’s exclave of Nakhichevan on the Turkish border. Karabakh, which is home to centuries-old monasteries and churches, is one of the few places in the Middle East where indigenous Christians still comprise a majority of the population. But that may not be the case much longer. The conflict has the potential to become a serious humanitarian crisis. 

You can read the whole essay here.

De Regno and the Establishment

St. Thomas Aquinas’s “De Regno” (one of the “other” works in addition to the Summa) is often translated, “On Kingship,” and at other times, “On Government.” The former is somewhat incomplete because it sounds as if the treatise is about monarchical arrangements alone. It is, of course, true that Aquinas defends monarchy in De Regno (the treatise was written to advise the King of Cyprus), but he does so within a broader exploration of the nature of political governance and the more general problem of tyrannical government (to include tyranny by the many, and not only by the one). “On Government” might be acceptable if “government” is taken to mean “politics” in the broadest sense as the “common thing” or fundamental commitments of the community.

Maybe the most accurate translation would be something like, “On the Political Establishment,” just in the way that our own Constitution talks about “establishments” in the First Amendment when it proscribes establishments “of religion.” One might wonder just which sort of establishments are permitted, or even encouraged, under such an arrangement. But back to Aquinas: the more expressly theological features of De Regno also incorporate a view of church-state relations that one might call mutually supportive or, more controversially, integrated, blending Christian and classical themes and arguments (as is usual for Aquinas). And there is much of interest as respects what we call “civil religion” and its dangers in De Regno.

Here is a relatively new book emphasizing the church-state issues in this important work: The Christian Structure of Politics: On the De Regno of Thomas Aquinas (Catholic University of America Press), by William McCormick, SJ (with a new paperback out next spring).

The Christian Structure of Politics, the first full-length monograph on Thomas Aquinas’s De Regno in decades, offers an authoritative interpretation of De Regno as a contribution to our understanding of Aquinas’s politics, particularly on the relationship between Church and State. William McCormick argues that Aquinas takes up a via media between Augustine and Aristotle in De Regno, invoking human nature to ground politics as rational, but also Christian principles to limit politics because of both sin and the supernatural end of man beyond politics. Where others have seen disjoined sections on the best regime, tyranny, and the reward of the king, McCormick identifies a dialogical structure to the text – one not unlike the disputed question format – whereby Aquinas both tempers expectations for the best government and offers a spiritual diagnosis of tyranny, culminating in a sharp critique of civil religion and political theology.

McCormick draws upon historical research on Aquinas’ context, especially that of Anthony Black, Cary Nederman and Francis Oakley, from which he develops three themes: the medieval preponderance of kingship and royal ideology; the relationship between Church and State; and the intersection of Latin Christianity and Greco-Roman antiquity. While age-old concerns, recent research in these areas has allowed us to move beyond simplistic platitudes.

For scholars of political theory and the history of political thought, De Regno will prove fascinating for the interplay of Aristotelian and Augustinian elements, undercutting the conventional wisdom that Aquinas was simply an Aristotelian. De Regno also includes an extended treatment of civil religion, one of Aquinas’ most historically-oriented discussions of politics.

A New Collection on Law and Christianity in Latin America

Earlier this fall, Routledge released a collection of essays on how Christianity has influenced the historical development of the law in that region, Law and Christianity in Latin America: The Work of Great Jurists. It looks to be a very helpful addition to the comparative study of law and religion. The editors are law professors M.C. Mirow (Florida International) and Rafael Domingo (Emory). Here’s the publisher’s description:

This volume examines the lives of more than thirty-five key personalities in Latin American law with a focus on how their Christian faith was a factor in molding the evolution of law in their countries and the region.

The book is a significant contribution to our ability to understand the work and perspectives of jurists and their effect on legal development in Latin America. The individuals selected for study exhibit wide-ranging areas of expertise from private law and codification, through national public law and constitutional law, to international developments that left their mark on the region and the world. The chapters discuss the jurists within their historical, intellectual, and political context. The editors selected jurists after extensive consultation with legal historians in various countries of the region looking at the jurist’s particular merits, contributions to law in general, religious perspective, and importance within the specific country and period under consideration. Giving the work a diversity of international and methodological perspectives, the chapters have been written by distinguished legal scholars and historians from Latin America and around the world.

The collection will appeal to scholars, lawyers, and students interested in the interplay between law and religion. Political, social, legal, and religious historians among other readers will find, for the first time in English, authoritative treatments of the region’s essential legal thinkers and authors. Students and other who may not read Spanish will appreciate these clear, accessible, and engaging English studies of the region’s great jurists.

Movsesian on 303 Creative

At First Things today, I report on last week’s oral argument in 303 Creative, the latest wedding vendor case to reach the Supreme Court–this time involving a web designer who does not wish to provide services for same-sex weddings. 303 Creative, like most such cases, presents a conflict between free speech, including religiously-motivated speech, and equality in the marketplace. Based on last week’s argument, I argue, it looks like speech will prevail. Here’s an excerpt:

Resolving [the web designer’s] claim requires the Court to answer a basic, conceptual question under the Court’s precedents: As applied to Smith’s web design business, does CADA regulate speech or conduct? If the former, CADA would have to satisfy a test known as “strict scrutiny.” Colorado would have to show that prosecuting Smith was “necessary” to promote a “compelling” state interest. By contrast, if the law regulates conduct and only incidentally affects speech, Colorado would have to satisfy a more lenient test known as the O’Brien standard. Colorado would have to show only that CADA “furthered” an “important” or “substantial” state interest unrelated to the suppression of speech.

At last week’s argument, Colorado’s lawyer argued that CADA is directed principally at conduct. Were Colorado to prosecute Smith, he explained, it would be because Smith had discriminated against customers based on sexual orientation, not because she expressed an opinion on same-sex marriage. Smith could not be required to praise same-sex marriage expressly—but she would have to design websites for all comers. Appearing on behalf of the Biden Administration as amicus curiae, Deputy Solicitor General Brian Fletcher agreed. Declining categorically to design websites for same-sex weddings, he told the justices, would be “a form of status-based discrimination properly within the scope of public accommodations laws.”

This argument appeared to persuade progressives like Justice Sonia Sotomayor—but not the Court’s conservatives. For example, Justice Neil Gorsuch stressed that Smith had said repeatedly that she would “serve everyone,” straight, gay, or transgender, and would decline to design websites for same-sex weddings no matter who requested them. She objected to expressing a message with which she disagreed, not to serving customers of different sexual identities. When it came to designing wedding websites, Gorsuch emphasized, “the question” for Smith wasn’t “who,” but “what.”

You can read the whole thing here.

Church as Foundation for State

For the second time in the last few weeks, I’ve come across a new book that argues that the Catholic Church was an important source of the foundational commitments and political structures of the contemporary European nation-state. The thesis is in some ways familiar from authoritative treatments by Berman in his “Law and Revolution,” but in others it is in considerable tension with a specific conception, still popular in some circles today, of church-state separation. This book, which looks quite interesting (soliciting Christmas gifts…), is Sacred Foundations: The Religious and Medieval Roots of the European State (Princeton UP), by Anna M. Grzymala-Busse.

Sacred Foundations argues that the medieval church was a fundamental force in European state formation. Existing accounts focus on early modern warfare or contracts between the rulers and the ruled. In contrast, this major study shows that the Catholic Church both competed with medieval monarchs and provided critical templates for governing institutions, the rule of law, and parliaments.

The Catholic Church was the most powerful, wealthiest, and best-organized political actor in the Middle Ages. Starting in the eleventh century, the papacy fought for the autonomy of the church, challenging European rulers and then claiming authority over people, territory, and monarchs alike. Anna Grzymała-Busse demonstrates how the church shaped distinct aspects of the European state. Conflicts with the papacy fragmented territorial authority in Europe for centuries to come, propagating urban autonomy and ideas of sovereignty. Thanks to its organizational advantages and human capital, the church also developed the institutional precedents adopted by rulers across Europe—from chanceries and taxation to courts and councils. Church innovations made possible both the rule of law and parliamentary representation.

Bringing to light a wealth of historical evidence about papal conflict, excommunications, and ecclesiastical institutions, Sacred Foundations reveals how the challenge and example of powerful religious authorities gave rise to secular state institutions and galvanized state capacity.

American Shtetl

Most of us who teach church and state courses are familiar with the Kiryas Joel case, decided almost 30 years ago, in which the Supreme Court ruled that a public school district drawn on religious lines violated the Establishment Clause. We’re a little late getting to it, but earlier this year Princeton published a book on the history of the Hasidic community that gave rise to the case.: American Shtetl: The Making of Kiryas Joel, A Hasidic Village in Upstate New York, by law professor Nomi Stolzenberg (USC) and historian David Myers (UCLA). Here’s the description from the publisher’s website:

Settled in the mid-1970s by a small contingent of Hasidic families, Kiryas Joel is an American town with few parallels in Jewish history—but many precedents among religious communities in the United States. This book tells the story of how this group of pious, Yiddish-speaking Jews has grown to become a thriving insular enclave and a powerful local government in upstate New York. While rejecting the norms of mainstream American society, Kiryas Joel has been stunningly successful in creating a world apart by using the very instruments of secular political and legal power that it disavows.

Nomi Stolzenberg and David Myers paint a richly textured portrait of daily life in Kiryas Joel, exploring the community’s guiding religious, social, and economic norms. They delve into the roots of Satmar Hasidism and its charismatic founder, Rebbe Joel Teitelbaum, following his journey from nineteenth-century Hungary to post–World War II Brooklyn, where he dreamed of founding an ideal Jewish town modeled on the shtetls of eastern Europe. Stolzenberg and Myers chart the rise of Kiryas Joel as an official municipality with its own elected local government. They show how constant legal and political battles defined and even bolstered the community, whose very success has coincided with the rise of political conservatism and multiculturalism in American society over the past forty years.

Timely and accessible, American Shtetl unravels the strands of cultural and legal conflict that gave rise to one of the most vibrant religious communities in America, and reveals a way of life shaped by both self-segregation and unwitting assimilation.