The Empyrean and the Celestial Rose

This spring, the Italian American Law Society at St. John’s Law School hosted a wonderful event led by some knowledgeable law students discussing Dante’s Divine Comedy, focusing in particular on Canto VI of Purgatorio and the politics of Florence and Italy at the time Dante wrote. The law and religion features of the Divine Comedy really might merit an entire course. Here is an interesting new book that features another important and sometimes neglected element of the masterwork: its theological framework and content. The book is Dante the Theologian (Cambridge University Press) by Denys Turner.

An understanding of Dante the theologian as distinct from Dante the poet has been neglected in an appreciation of Dante’s work as a whole. That is the starting-point of this vital new book. In giving theology fresh centrality, the author argues that theologians themselves should find, when they turn to Dante Alighieri, a compelling resource: whether they do so as historians of fourteenth-century Christian thought, or as interpreters of the religious issues of our own times. Expertly guiding his readers through the structure and content of the Commedia, Denys Turner reveals – in pacy and muscular prose – how Dante’s aim for his masterpiece is to effect what it signifies. It is this quasi-sacramental character that renders it above all a theological treatise: whose meaning is intelligible only through poetry. Turner’s Dante ‘knows that both poetry and theology are necessary to the essential task and that each without the other is deficient.

Around the Web

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

  • The U.S. Supreme Court denied certiorari in The School of the Ozarks v. Biden, in which the 8th Circuit held a Christian college did not have standing to challenge a U.S. Department of Housing and Urban Development memorandum directing the HUD to investigate all discrimination complaints, including those based on sexual orientation or gender identity. This decision affected the school’s policy of maintaining single-sex residence halls according to biological sex, which is part of their religiously-inspired Code of Conduct.
  • In Braidwood Management, Inc. v. EEOC, the 5th Circuit held that the Religious Freedom Restoration Act (RFRA) necessitates an exemption from the sex discrimination provisions of Title VII for a company operating based on Christian beliefs about sexual orientation and gender identity. The court said that forcing the company to hire employees with opposing religious and moral views is not the least restrictive means of promoting its compelling interest.
  • In United States v. Lindor, the Army Court of Criminal Appeals found that the appellant’s use of Vodou rituals, while in accordance with his First Amendment rights, did not shield him from prosecution for murder. The court stated, “[A]ctivities that harm others are not protected by the free exercise clause. To characterize appellant’s chosen techniques to plan, express, and actuate his intent to murder . . . as the free exercise of his religious beliefs would expropriate the free exercise clause of any principled, reasonable meaning.”
  • The Darren Patterson Christian Academy has filed a lawsuit challenging the conditions Colorado has set for pre-schools to participate and receive funding in the state’s universal pre-school program. The school argues that the Colorado Department of Early Childhood’s regulations, which prohibit discrimination based on religion, sexual orientation, or gender identity, force it to forgo its religious character and beliefs. The school asserts that these rules compel it to hire employees who do not share its faith and to change internal rules and policies aligned with its religious beliefs, including those related to restroom usage, pronouns, dress codes, and student housing during field trips.
  • In Brandon v. Board of Education of the City of St. Louis, the Eastern District of Missouri declined to dismiss Free Exercise Clause and Equal Protection Clause claims by 41 teachers and staff challenging the school district’s COVID-19 vaccine mandate. The court reasoned, “[b]ecause Plaintiffs have pleaded the existence of a late-2021 policy apparently lacking the urgency that characterized the regulations and executive orders issued early in the pandemic… [the Court is] to apply the ordinary tiers of scrutiny to the District’s Policy as alleged.”
  • In Foothills Christian Church v. Johnson, the Southern District of California dismissed a free exercise challenge by Christian pre-schools to California’s child care licensing requirement. It held that the Child Day Care Facilities Act does not prevent the schools from offering a program that includes compulsory participation in religious events. While the Act requires that schools make attendance at religious activities voluntary in the discretion of the child’s parents or guardian, it also allows schools to refuse to admit children whose parents or guardians are unwilling to agree that their children will attend religious activities.

Religion of Delight

The rise of the Nones is one of the most discussed features of contemporary American religion. Most Nones are not atheists or agnostics. Rather, they are unaffiliated believers who follow their own spiritual paths. Often, those paths involve a kind of pantheism. Although mass-market pantheism is definitely of our own time, an elite pantheism has been part of American religious culture since at least the Transcendentalists. A new book from the University of Chicago Press, The Delight Makers: Anglo-American Metaphysical Religion and the Pursuit of Happiness, by scholar Catherine Albanese (UC-Santa Barbara) explores the phenomenon. Here’s the description from the publisher’s website:

An ambitious history of desire in Anglo-American religion across three centuries.

The pursuit of happiness weaves disparate strands of Anglo-American religious history together. In The Delight Makers, Catherine L. Albanese unravels a theology of desire tying Jonathan Edwards to Ralph Waldo Emerson to the religiously unaffiliated today. As others emphasize redemptive suffering, this tradition stresses the “metaphysical” connection between natural beauty and spiritual fulfillment. In the earth’s abundance, these thinkers see an expansive God intent on fulfilling human desire through prosperity, health, and sexual freedom. Through careful readings of Cotton Mather, Andrew Jackson Davis, William James, Esther Hicks, and more, Albanese reveals how a theology of delight evolved alongside political overtures to natural law and individual liberty in the United States.

Around the Web

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

  • The U.S. Supreme Court denied certiorari in two cases (Faith Bible Chapel International v. Tucker and Synod of Bishops v. Belya) holding that interlocutory appeals from denials of a ministerial exception defense are not allowed.
  • In Donovan v. Vance, the 9th Circuit held that Department of Energy employees who objected to the government’s Covid vaccine mandate on religious grounds could not seek damages because the Executive Orders at issue had been revoked. Plaintiffs had sued federal officials in their official capacity, but the court held further that the United States has not waived sovereign immunity for damages under RFRA.
  • In United States v. Grenon, the Southern District of Florida ruled that the government could not preclude defendants from offering evidence of free exercise and RFRA defenses in their trial for manufacturing, marketing and distributing an unlicensed drug. The defendants are members of a church called Genesis II Church of Health and Healing, and they “promoted MMS [the drug] as a miracle cure to various illnesses and ailments,” which, when ingested, becomes chlorine dioxide.
  •  In McMahon v. World Vision Inc.the Western District of Washington dismissed a Title VII sex discrimination suit as barred by the Church Autonomy Doctrine.  A Christian ministry offered a job to the plaintiff, but rescinded the offer when the defendant learned that plaintiff was in a same-sex marriage. The court concluded that the Church Autonomy Doctrine may be invoked when a non-ministerial employee brings a Title VII action.
  •  In Micah’s Way v. City of Santa Ana, the Central District of California refused to dismiss a suit by a center that aids impoverished and disabled individuals in which it claimed that the city had violated its rights under RLUIPA and the First Amendment by refusing to issue it a Certificate of Occupancy unless it agrees to stop providing food and beverages to its clients. The court held that Micah’s Way plausibly alleged that its food distribution activities are a “religious exercise” and that the city substantially burdened that religious exercise.
  •  In The Catholic Bookstore, Inc. v. City of Jacksonville, the Middle District of Florida found that a Catholic bookstore has standing to challenge Jacksonville’s Human Rights Ordinance, which provides that it is unlawful to publish, circulate or display any communication indicating that service will be denied, or that patronage is unwelcome from a person, because of sexual orientation or gender identity. The bookstore wants to publicize its policy requiring its staff to address co-workers and customers only by “pronouns and titles that align with the biologically originating sex of the person being referenced . . . .”

Religious Liberty in a Polarized Age

Our friend Tom Berg, a professor at the University of St. Thomas Law School–Minnesota and a participant in the Center’s Tradition Project and other programs, is one of the country’s best known scholars of church and state. Next month, he comes out with a new book on the subject from Eerdman’s, Religious Liberty in a Polarized Age, arguing against a selective approach to religious freedom–“yes” for my allies, “no” for my opponents–and for a balanced commitment to religious freedom in the interests of social harmony. Anything Tom writes is worth reading and this looks like a very interesting book, indeed. Here’s the description from the Eerdman’s site:

As our political and social landscapes polarize along party lines, religious liberty faces threats from both sides. From antidiscrimination commissions targeting conservative Christians to travel bans punishing Muslims, recent litigation has revealed the selective approach both left and right take when it comes to freedom of religion. But what if religious liberty is part of the cure for our political division? 
Drawing on constitutional law, history, and sociology, Thomas C. Berg shows us how reaffirming religious freedom cultivates the good of individuals and society. After explaining the features of polarization and the societal benefits of diverse religious practices, Berg offers practical counsel on balancing religious freedom against other essential values. 
Protecting Americans’ ability to live according to their beliefs undergirds a healthy, pluralistic society—and this protection must extend to everyone, not just political allies. Lay readers and legal scholars who are weary of partisan quarreling will find Berg’s case timely and compelling.

A New Kind of Schooling

It is hard to overstate the changes that are coming to K-12 education in America. States are increasingly electing funding schemes in which the money follows students rather than systems–a new approach that goes by the moniker, “school choice.” The Supreme Court has invalidated programs that exclude religious schools from otherwise neutral state funding programs, even when monies might go to what are conventionally regarded as “religious” activities. Parents are increasingly dissatisfied with the educational and social experience their children receive in public schools, which only increased during the COVID period and was exacerbated by bitter culture-war conflict over the substance of what is being taught. Most recently, word comes from Oklahoma of the first religious charter school, a hybrid public-private entity whose constitutionality will surely be challenged and that would, in fact, be vulnerable under the no-aid regime of the past. But it may well survive and others like it grow.

Exciting and interesting times for lower school education (and, I should think, for its inevitable downstream effects on higher education). But many are deeply displeased with these developments, which, it is true, signal a real sea change for the American public school and the dismantling of yet one more American institution. Among the ranks of the unhappy is journalist Cara Fitzpatrick, who has a new book, The Death of the Public School: How Conservatives Won the War Over Education in America (Basic Books).

America has relied on public schools for 150 years, but the system is increasingly under attack. With declining enrollment and diminished trust in public education, policies that steer tax dollars into private schools have grown rapidly. To understand how we got here, The Death of Public School argues, we must look back at the turbulent history of school choice.     
Cara Fitzpatrick uncovers the long journey of school choice, a story full of fascinating people and strange political alliances. She shows how school choice evolved from a segregationist tool in the South in the 1950s, to a policy embraced by advocates for educational equity in the North, to a conservative strategy for securing government funds for private schools in the twenty-first century. As a result, education is poised to become a private commodity rather than a universal good.   

The Death of Public School presents the compelling history of the fiercest battle in the history of American education—one that already has changed the future of public schooling.  

Around the Web

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

  • The Third Circuit heard oral arguments in Reilly v. City of Harrisburg, a case involving anti-abortion sidewalk counselors challenging a Harrisburg, Pennsylvania ordinance creating a 20-foot buffer zone around healthcare facilities including abortion clinics. The lower court had previously dismissed the suit for insufficient evidence of free speech and assembly rights violations.
  • In Erie v. Hunter, a Louisiana federal district court did not dismiss a case by a mental health detainee, Erie, who was allegedly forced to attend a Christian service. The court rejected the argument that defendant faced a “binary choice,” arguing there were “other options [Ms. Hunter] could have use [sic] to locate other staff” to supervise those not attending the service.
  • In Olympus Spa v. Armstrong, a Washington court dismissed a suit by a women’s spa challenging a law against gender identity discrimination. The spa argued that the law infringed on its religious and free expression rights, but the court held that the law was neutral and generally applicable, and dismissed the spa’s freedom of association claims.
  • In Anonymous Plaintiff 1 v. Individual Members of the Medical Licensing Board of Indiana, an Indiana state trial court has certified as a class action a suit contesting Indiana’s abortion restrictions. The plaintiffs, who have already been granted a preliminary injunction, argue that their religious beliefs permit or even mandate abortions in cases disallowed by Indiana law. The class has been defined as individuals in Indiana whose religious beliefs direct them to obtain abortions prohibited by Senate Enrolled Act No. 1(ss) but are unable to do so due to the Act.
  • The St. Isidore of Seville Catholic Virtual School has been approved to become the first publicly-funded religious charter school in the U.S., by a 3-2 vote from the Oklahoma Statewide Virtual Charter School Board, a decision that “caps months of debate over government support for sectarian education.” Americans United announced they are preparing a lawsuit to challenge the approval.
  • A dispute between Miami Beach and the Orthodox Jewish Congregation Bais Yeshaya D’Kerestir scheduled for trial in federal court has been settled, with Miami Beach agreeing to pay the congregation $1.3 million. The congregation argued that their property was being used for “private prayer,” not as a synagogue, and drew parallels to homeowners hosting parties. The city, however, presented evidence that the house was indeed functioning as a synagogue, including an industrial-size coffee urn and benches for up to 30 people.

Confucian Common Goodism

Here in the West, some scholars are reviving an older, pre-liberal conceptions of politics that can be grouped under the heading of common good constitutionalism. At the heart of most of these conceptions, all of which are quite controversial, is a natural-law approach, deriving from Western sources like Aristotle and Christian, often specifically Catholic, sources. A new book from Oxford addresses common-good politics from a very different cultural perspective, Confucianism. Looks interesting. The book is Confucian Constitutionalism: Dignity, Rights, and Democracy, by political theorist Sungmoon Kim (City University of Hong Kong). Here is the publisher’s description:

Ongoing debates among political theorists revolve around the question of whether the overarching goal of Confucianism–serving the people’s moral and material wellbeing–is attainable in modern day politics without broad democratic participation. One side of the debate, voiced by Confucian meritocrats, argues that only certain people are equipped with the moral character needed to lead and ensure broad public wellbeing. The other side, voiced by Confucian democrats, argues that unless all citizens participate equally in the public sphere, a polity cannot attain the moral growth that Confucianism emphasizes.

Written by one of the leading voices of Confucian political theory, Confucian Constitutionalism presents a constitutional theory of democratic self-government that is normatively appealing and politically practicable in East Asia’s historically Confucian societies, which are increasingly pluralist, multicultural, and rights sensitive. While Confucian political theorists are preoccupied with how to build a Confucianism-inspired institution that would make a given polity more meritorious, Sungmoon Kim offers a robust normative theory of Confucian constitutionalism–what he calls “Confucian democratic constitutionalism”–with special attention to value pluralism and moral disagreement.

Building on his previous theory of Confucian democracy, Kim establishes egalitarian human dignity as the underlying moral value of Confucian democratic constitutionalism and derives two foundational rights from Confucian egalitarian dignity–the equal right to political participation and the equal right to constitutional protection of civil and political rights. He then shows how each of these rights justifies the establishment of the legislature and the judiciary respectively as two independent constitutional institutions equally committed to the protection and promotion of the people’s moral and material wellbeing, now reformulated in terms of rights. Aiming to contribute to both political theory and comparative law, Confucian Constitutionalism explains how Confucian democratic constitutionalism differs from and improves upon liberal legal constitutionalism, political constitutionalism, and Confucian meritocratic constitutionalism.

Around the Web

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

  •  In Lowe v. Mills, the 1st Circuit reversed in part a Maine district court’s dismissal of a suit byhealth care facility workers who were denied religious exemptions from the state’s COVID vaccine mandate. The court affirmed dismissal of the Title VII claims, but allowed plaintiffs’ Free Exercise and Equal Protection claims to go forward.
  • In Ratlliff v. Wycliffe Associates, Inc., the Middle District of Florida refused to dismiss a Title VII employment discrimination suit brought by a software developer who was fired from a Bible translation company after the company learned that he had entered a same-sex marriage. The court rejected the company’s RFRA and ministerial exception defenses.
  • In Tatel v. Mt. Lebanon School District (II)the Western District of Pennsylvania held that parents of first-grade students asserted plausible claims that their due process and free exercise rights were violated by a teacher who discussed gender identity with young students. The court found that the teacher’s discussion “conflicts with [the Plaintiffs’] sincerely held religious and moral beliefs.”
  • In Rolovich v. Washington State University, the Eastern District of Washington refused to dismiss a Title VII failure-to-accommodate claim by the head football coach of Washington State University. The coach was terminated after he refused to comply with the state’s Covid vaccine mandate on religious grounds, and the court found that he had done enough at the pleading stage to show a sincerely held religious belief.
  • The EEOC announced that it has filed a Title VII suit against Triple Canopy, Inc., for failing to reasonably accommodate an employee’s religious beliefs. The employee maintained that he “did not belong to a formal religious denomination but nonetheless held a Christian belief that men must wear beards.” The employer discharged him because he could not obtain a supporting statement from a religious leader.
  • The Becket Fund for Religious Liberty filed suit in the United States District Court for the District of Minnesota challenging a Minnesota law that excludes religious universities from a program that allows high school students to obtain no-cost college credit. 

Loathing Ourselves

An interesting feature of a society built on the intellectual and cultural cornerstone of a progressive philosophy of history–the view that a society advances linearly toward a more universally just, rational, and equal world–is that it tends to excite hatred of the customs and practices of its past, imperfect self. The phenomenon is particularly acute for more mature, materially and socially successful societies, because it is these societies that can afford a well-to-do, highly educated, elite social stratum, which separates itself from those self-same customs and practices. The seeds of self-loathing are therefore contained within the successful society and a cyclical marker of its decline.

Something like this seems to be the thesis of an interesting new book: Western Self-Contempt: Oikophobia in the Decline of Civilizations (Cornell University Press) by Benedict Beckeld.

Western Self-Contempt travels through civilizations since antiquity, examining major political events and the literature of ancient Greece, Rome, France, Britain, and the United States, to study evidence of cultural self-hatred and its cyclical recurrence. Benedict Beckeld explores oikophobia, described by its coiner Sir Roger Scruton as “the felt need to denigrate the customs, culture and institutions that are identifiably ‘ours,'” in its political and philosophical applications. Beckeld analyzes the theories behind oikophobia along with their historical sources, revealing why oikophobia is best described as a cultural malaise that befalls civilizations during their declining days.

Beckeld gives a framework for why today’s society is so fragmented and self-critical. He demonstrates that oikophobia is the antithesis of xenophobia. By this definition, the riots and civil unrest in the summer of 2020 were an expression of oikophobia. Excessive political correctness that attacks tradition and history is an expression of oikophobia. Beckeld argues that if we are to understand these behaviors and attitudes, we must understand oikophobia as a sociohistorical phenomenon.

Western Self-Contempt is a systematic analysis of oikophobia, combining political philosophy and history to examine how Western civilizations and cultures evolve from naïve and self-promoting beginnings to states of self-loathing and decline. Concluding with a philosophical portrait of an increasingly interconnected Western civilization, Beckeld reveals how past events and ideologies, both in the US and in Europe, have led to a modern culture of self-questioning and self-rejection.