In this episode, Marc and Mark discuss the background and recent oral argument before the Supreme Court in Groff v. DeJoy, a case about religious accommodation in the workplace under Title VII. The case involves a postal worker who observes Sunday sabbath and who was disciplined by the United States Postal Service after a dispute between the parties arose concerning his accommodation from working on Sunday. We discuss the interpretation of the statutory language “undue hardship,” an old 1970s-era Supreme Court decision offering an unusual reading of that language, and the general and growing problem of religious accommodation in a pluralistic society that makes this case so controversial. Listen in!
Gibbon, among others, famously argued that the rise of Christianity contributed to the fall of the Roman Empire, in the West, anyway: In the East, the Empire lasted another 1000 years, which is a long time to fall by any standards. A new book from Harvard University Press, The Tragedy of Empire: From Constantine to the Destruction of Roman Italy, discusses the establishment of Christianity in the Empire, among other topics, in its account of the last two centuries of the Empire in the West. The author is historian and classicist Michael Kulikowsi (Penn State). Here’s the publisher’s description:
A sweeping political history of the turbulent two centuries that led to the demise of the Roman Empire.
The Tragedy of Empire begins in the late fourth century with the reign of Julian, the last non-Christian Roman emperor, and takes readers to the final years of the Western Roman Empire at the end of the sixth century. One hundred years before Julian’s rule, Emperor Diocletian had resolved that an empire stretching from the Atlantic to the Euphrates, and from the Rhine and Tyne to the Sahara, could not effectively be governed by one man. He had devised a system of governance, called the tetrarchy by modern scholars, to respond to the vastness of the empire, its new rivals, and the changing face of its citizenry. Powerful enemies like the barbarian coalitions of the Franks and the Alamanni threatened the imperial frontiers. The new Sasanian dynasty had come into power in Persia. This was the political climate of the Roman world that Julian inherited.
Here’s an announcement for a very worthwhile moot court competition in comparative law and religion in Milan this fall. I’ve had the honor of judging the competition in past years and can attest that it’s a unique and fun event for everyone concerned. Law students who are interested in the topic should seriously consider fielding a team! For more info, follow the links — MLM
After many successful editions, the International Moot Court Competition in Law and Religion is moving this year to Milan, Italy!
The Seventh Edition of the Program will run from September 18 to September 19, 2023, in Milan, Italy.
Teams from, within, and outside Europe will argue a case before the European Court of Human Rights and the Supreme Court of the United States. Pre-eminent scholars and actual judges from the two jurisdictions will sit as judges of the two Courts.
Have a look here, for a glimpse of the past editions, where Teams from the United States, Russia, the UK, and Italy gathered together and plead before prominent Judges.
Catholic Social Thought is the body of learning and teaching concerning the Catholic Church’s considered views about a broad range of social, political, and cultural concerns informed by and in response to changing circumstances. Here is a new book that locates the role of the virtues (as developed in the Western philosophical tradition) within Catholic Social Thought, Catholic Social Teaching in Practice: Exploring Practical Wisdom and the Virtues Tradition (Cambridge University Press), by Andrew Yuengert.
Although the virtues are implicit in Catholic Social Teaching, they are too often overlooked. In this pioneering study, Andrew M. Yuengert draws on the neo-Aristotelian virtues tradition to bring the virtue of practical wisdom into an explicit and wide-ranging engagement with the Church’s social doctrine. Practical wisdom and the virtues clarify the meaning of Christian personalism, highlight the irreplaceable role of the laity in social reform, and bring attention to the important task of lay formation in virtue. This form of wisdom also offers new insights into the Church’s dialogue with economics and the social sciences, and reframes practical political disagreements between popes, bishops, and the laity in a way that challenges both laypersons and episcopal leadership. Yuengert’s study respects the Church’s social tradition, while showing how it might develop to be more practical. By proposing active engagement with practical wisdom, he demonstrates how Catholic Social Teaching can more effectively inform and inspire practical social reform.
Here are some important law-and-religion news stories from around the web:
The Supreme Court heard oral arguments inGroff v. DeJoy, a case examining the extent to which Title VII requires accommodation of employees’ religious practices. In this case, the Third Circuit Court of Appeals held that accommodating a Christian Sunday sabbath observer by allowing him not to report for work on Sunday would cause an “undue hardship” to the U.S. Postal Service, and that, therefore, failure to grant that accommodation did not violate Title VII. Petitioners asked the Supreme Court to revisit and reject the “more than de minimis” test for “undue hardship” announced in TWA v. Hardison.
In Bosarge v. Edney, a Mississippi federal district court issued a preliminary injunction requiring religious exemptions from the state’s mandatory vaccination requirements for school children, arguing that the current statute allowing only medical exemptions is an “unconstitutional value judgment.” The court rejected the Attorney General’s claim that the Mississippi Religious Freedom Restoration Act (MRFRA) saves the law, stating it cannot be read to cure all potential Free Exercise Clause violations.
In Konchar v. Pins, the Iowa Supreme Court affirmed the dismissal of fraud, defamation, and breach of contract claims by a former Catholic school principal. The court stated that “the First Amendment precludes inquiries by ‘a civil court’ into ‘the decision of whether Konchar was suitable for the role of Principal at St. Joseph’s.'” Two justices filed a concurring opinion emphasizing that the majority opinion leaves the door open to formally applying the ministerial exception in Iowa.
In Grace United Methodist Church Inc. v. Board of Trustees of FL Annual Conf of UMC Inc., a Florida state trial court dismissed a suit by 71 Methodist congregations seeking to break away from the United Methodist Church over LGBTQ+ issues. The court cited Florida precedent requiring deference to church hierarchical decisions while noting that “merely deferring to the UMC on all matters and denying the Plaintiffs access to the courts to litigate neutral property and trust matters does not meet the strictest scrutiny.”
The Washington Post reported that Texas federal district court judge Matthew Kacsmaryk removed his name as author of a pending law review article criticizing Obama-era protections for transgender people and those seeking abortions just prior to his nomination to the federal bench. The article, titled “The Jurisprudence of the Body,” was published in September 2017 under the names of two colleagues from First Liberty Institute, without disclosing Kacsmaryk’s role or listing the article in his Senate confirmation paperwork. A spokesman for First Liberty claimed Kacsmaryk’s name had been a “placeholder” and that he had not provided a “substantive contribution.”
The Antisemitism Worldwide Report for 2022, published by the Center for the Study of European Jewry and the ADL, noted an alarming rise in anti-Jewish violence in the U.S. It calls for accurate reporting to avoid sensationalism and highlights that antisemitic defamation can occur even in countries with small Jewish populations, citing examples from Yemen and Japan.
From the beginning, when we started this center a dozen years ago (time flies!), one of the subjects we have most wanted to study is comparative law and religion. The US is not the only country to have to negotiate the competing demands of church and state, and observing how other countries manage those demands can be instructive.
The institutional entanglement of religion and government takes many forms, including direct governmental funding of religious associations, legal recognition, and governmental endorsement of religious symbols in public spaces. The entanglement of church and state remains contentious in many democratic countries today. In fact, in Europe and North America, there are a growing number of instances of governments becoming entwined with religious matters.
Worldly Politics and Divine Institutions explores the entanglement of religion and government in a comparative analysis of four cases within democratic countries: the British Jewish Free School (JFS) case, in which the U.K. Supreme Court forced a government-funded faith school to change its admission policies; The European Court of Human Rights decision in Martinez, in which the Catholic church kept its right to dismiss religion teachers within the Spanish public school system; The Lautsi case, in which the Italian government successfully defended its policy of mandating a crucifix in all public school classrooms – at the European Court of Human Rights; and the case of the Bladensburg World War I Memorial (often called the Peace Cross) in Maryland, in which the U.S. Supreme Court ruled that the cross’s public placement and maintenance funding does not violate the non-establishment clause of the First Amendment. Perez describes how these cases create complex, hybrid religious-statist institutions and outlines a novel framework for understanding these cases.
In this podcast, Marc and Mark discuss some of the common themes in two books that we recently read and reflected on with our students in the Center’s Reading Society: Walter M. Miller, Jr.’s A Canticle for Leibowitz and Alasdair MacIntyre’s After Virtue: A Study in Moral Theory. The themes include the nature and value of knowledge, the fragmentary quality of moral discourse today, and the question whether (law) teachers are, or should be, (more like) monks (than anything else). Listen in!
I was happy to chat again last week with Al Kresta of Ave Maria Radio about the recent Wall Street Journal poll showing a decline in interest in community, country, and tolerance–and how the poll shows that Tocqueville was basically correct. A link to the interview is here.
Here are some important law-and-religion news stories from around the web:
In Kluge v. Brownsburg Community School Corp., the Seventh Circuit rejected a school teacher’s Title VII challenge after she was fired because she refused, on religious grounds, to comply with the school’s policy of calling transgender students by their names registered in the school’s official database.
An Arizona federal district court held a hearing in Arizona Christian University v. Washington Elementary School District. The university alleges that by terminating a student-teaching partnership between the university and the school district because of the university’s asserted religious beliefs, the school district violated the university students’ free exercise rights.
In Bolonchuk v. Cherry Creek Nursing Center/ Nexion Health, a federal magistrate judge in the United States District Court for the District of Colorado recommended dismissal of a suit brought by a former nursing home healthcare employee who was terminated after she refused on religious grounds to comply with her employer’s Covid vaccine mandate for healthcare workers. The court found that the employer did not violate the employee’s First Amendment rights because it was not a state actor
In Hilo Bay Marina, LLC v. State of Hawaii, a Hawaii trial court found that a deed restriction requiring land to be used solely for church purposes did not violate the Establishment Clause, applying the Supreme Court’s “historical practices and understandings” test from Kennedy v. Bremerton School District.
In Montgomery v. St. John’s United Church of Christ, the plaintiffs’ claims that they were sexually harassed by the lay leader of the church and subsequently terminated because they resisted the conduct was dismissed by an Ohio state appellate court. The court dismissed the plaintiffs’ hostile work environment claims because of the ministerial exception, which exempts religious institutions from federal employment discrimination laws.
The Oxford Movement was an early nineteenth century school of religious thought that aimed to reinfuse Anglicanism with the Catholic tradition–to create an Anglo-Catholicism. Here is one of its spiritual leaders, St. John Henry Newman, with a suggestive description from his Apologia Pro Vita Sua:
Now and then a man of note appeared in the Pulpit or Lecture Rooms of the University, who was a worthy representative of the more religious and devout Anglicans. These belonged chiefly to the High-Church party; for the party called Evangelical never has been able to breathe freely in the atmosphere of Oxford, and at no time has been conspicuous, as a party, for talent or learning. But of the old High Churchmen several exerted some sort of anti-liberal influence in the place, at least from time to time, and that influence of an intellectual nature. Among these especially may be mentioned Mr. John Miller, of Worcester College, who preached the Bampton Lecture in the year 1817. But, as far as I know, he who turned the tide, and brought the talent of the University round to the side of the old theology, and against what was familiarly called “march-of-mind,” was Mr. Keble. In and from Keble the mental activity of Oxford took that contrary direction which issued in what was called Tractarianism.
A “historical Christianity,” as Cardinal Newman put it in another work. The twentieth century historian, Christopher Dawson, describes the coming of this school in this newly published volume that should be of great interest, The Spirit of the Oxford Movement(Catholic University of America Press), with an introduction by Professor Kenneth L. Parker.
Dawson and John Henry Newman were Oxonians and both were converts to Catholicism; both stood against progressive and liberal movements within society. In both ideologies, Dawson saw a pathway that had once led to the French Revolution. Newman, for Dawson, was a kindred spirit.
In The Spirit of the Oxford Movement, Dawson goes beyond a mere retelling of the events of 1833 – 1845. He shows us the prime movers who sought a deeper understanding of the Anglican tradition: the quixotic Hurrell Froude, for instance, who “had none of the English genius for compromise or the Anglican faculty of shutting the eyes to unpleasant facts.” It was Froude who brought Newman and Keble together and who helped them understand each other. In many ways, Dawson sees these three as the true embodiment of the Tractarian ethos.
Dawson probes deeply, though, to provide a richer, clearer understanding of the intellectual underpinnings of the Oxford Movement, revealing its spiritual raison d’être. We meet a group of gifted like-minded thinkers, albeit with sharp disagreements, who mock outsiders and each other, who pepper their letters with Latin, and forever urge each other on. Newman came to believe, as did Dawson, that the only intellectually coherent bastion against secular culture was religion, and the “on” to which they were urged was the Catholic church. The Spirit of the Oxford Movement provides insights into why Newman, and Dawson, came to this understanding.