Posted on by L&R Forum

Around the Web

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

  • In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, the Western District of Washington dismissed a free exercise challenge by a church to a law requiring health insurance plans that provide maternity coverage to provide substantially equivalent abortion coverage as well. The court dismissed the challenge, finding that the law was neutral and generally applicable, and that it served a legitimate governmental purpose.
  • In Kumar v. Koester, the Central District of California dismissed for lack of standing free exercise and equal protection challenges to CSU’s use of the term “caste” in its interim non-discrimination policy. However, the court concluded that plaintiffs, Hindu professors, could bring Establishment Clause and vagueness claims.
  • In Society of the Divine Word v. U.S. Citizenship & Immigration Services, the Northern District of Illinois rejected RFRA, free exercise, Establishment Clause and equal protection challenges to a federal law allowing foreign-born ministers and international religious workers to file for green cards only after their employers obtain special immigrant religious worker classifications for them. Employees of non-religious organizations may file for green cards concurrently with their employers’ filings.
  • In Ellison v. Inova Health Care Services, three hospital employees sued under Title VII in the Eastern District of Virginia because their applications for religious exemptions from the Covid vaccine mandate were rejected. The court found one of the plaintiff’s objections, involving aborted fetal cell lines, was linked to plaintiff’s religious beliefs, but that the other objections were not religious in nature. 
  • On July 24, the Guam legislature overrode Governor Lourdes Leon Guerrero’s July 12 veto of Bill No.62-37, which allows private and religious schools to petition to convert to government-funded Academy Charter Schools, by a 13-0 vote. The legislation authorizes up to 7 charter schools to operate at any one time.
  • On July 14, the United Nations Human Rights Council adopted Resolution A/HRC/53/L.23, Countering Religious Hatred Constituting Incitement to Discrimination, Hostility or Violence, which condemned the burning of the Qur’an, affirming it as an “offensive, disrespectful and a clear act of provocation, constituting incitement to discrimination, hostility or violence and a violation of international human rights law.”
Posted on by Mark Movsesian

A New Book on the Founding of Israel

According to observers who know much more about the situation than I, the debate over judicial reform in Israel suggests a profound struggle over the country’s basic character as a Jewish and democratic state. Israel’s founders thought they could have it both ways–that a political religious identity could exist together with secular pluralism in a creative tension. The events of this summer show that the balance is becoming harder. A new book from Cambridge University Press, Israel’s Declaration of Independence: The History and Political Theory of the Nation’s Founding Moment, discusses the perhaps unsustainable vision of the people who founded the Jewish State. The authors are Neil Rogachevsky (Yeshiva University) and Don Zigler. Here is the publisher’s description:

Israel’s Declaration of Independence brings to life the debates and decisions at the founding of the state of Israel. Through a presentation of the drafts of Israel’s Declaration of Independence in English for the first time, Neil Rogachevsky and Dov Zigler shed new light on the dilemmas of politics, diplomacy, and values faced by Israel’s leaders as they charted the path to independence and composed what became modern Israel’s most important political text. The stakes began with war, state-building, strategy, and great power politics, and ascended to matters of high principle: freedom, liberty, sovereignty, rights, and religion. Using fast-paced narration of the meetings of Israel’s leadership in April and May 1948, this volume tells the astonishing story of the drafting of Israel’s Declaration of Independence, enriching and reframing the understanding of Israel’s founding and its ideas – and tracing its legacy.

Posted on by Marc O. DeGirolami

New New Natural Law

The “new natural law” (or NNL) is a school of natural law thought, arising in the mid-1960s in the work of Germain Grisez and thereafter, which aimed to revive and revise Thomistic thought for the contemporary period. Its greatest expositor is John Finnis, whose “Natural Law and Natural Rights” is one of the most important works in the philosophy of law of the 20th century, but it has many other major scholarly defenders as well as challengers (for example, Ralph McInerny and Russell Hittinger). It’s too difficult to get into much of the substance of new natural law theory in a post like this, but suffice it to say that one of the basic tenets of the new natural law theory concerns the question how we come to know what it is good to do and to act to achieve those ends. NNL theorists generally believe that a person’s practical reason (reason oriented toward action) “naturally” has access to or understands as self-evidently desirable a number of basic human goods. For NNL theorists, these goods include life, knowledge, friendship, and several others. Moral reflection and decision is needed, on the NNL account, because in any given situation, actions needed to achieve one of these goods may render the achievement of other goods difficult or even impossible. Note that the role of divine illumination for NNL is robustly debated from those within the natural law tradition.

As I say, there is a great deal more to NNL theory than just this, and interested readers should go to the main sources, especially Professor Finnis’ work. But here is a new book coming out this fall that is very likely to intervene in the arguments about NNL theory and perhaps amend or update them, and that looks well worth checking out: Natural Law and Modern Society (Oxford University Press) by Sean Coyle.

Modern society is riven by social divisions: between conservatives and progressives; liberals and socialists; the mainstream and the rise of far-right political groups etc. Instead of truth, there are ‘post-truth’ and ‘alternative facts’. In the wake of problems caused by untruthful politicians and world leaders, by Brexit and Covid, the need to repair or rebuild our communities has become paramount, but what kind of community should we build, and on what foundations? This book suggests that natural law is such a foundation.

Natural Law and Modern Society presents a new theory of natural law, grounded in the thought of Saint Thomas Aquinas, aimed at answering questions relevant to the world of today: from the nature of morality and ethics to the theory of law, obligation and political authority; from the domestic realm to international community. It seeks to elicit from the natural law tradition timeless truths concerning the human condition, in particular the social and political dimensions to human existence. This mode of existence, it argues, is not a problem to be resolved through some permutation of political institutions, but a predicament to be managed. At the heart of the book is the identification of a ‘core morality’: a set of moral requirements that are foundational to every society at all places and times, as distinct from those standards that are particular to this or that society at some time.

Posted on by L&R Forum

Around the Web

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

  • The 9th Circuit heard oral arguments in Catholic Healthcare International, Inc. v Genoa Charter Township, Michigan, a RLUIPA case stemming from the organization’s construction of religiously symbolic structures on a property without the Township’s approval, contrary to the Township’s instruction that such construction would be classified as a special land use requiring specific approval.
  • In Kariye v. Mayorkas, a California Federal District Court dismissed a case brought forward by three Muslim plaintiffs who claimed their rights were violated by religious questioning at US ports of entry. Rejecting the plaintiffs’ Establishment Clause and Free Exercise claims, the court cited “historical practices” at the border and “maintaining border security” as compelling government interests.
  • Suit was filed in a Pennsylvania federal district court on behalf of two parochial school students and their parents challenging a school district policy that allows home school and charter school students to participate in the district’s extracurricular and co-curricular activities but does not allow private and parochial school students to do the same. The plaintiffs argue that the exclusion of religious parochial schools infringes on their free exercise and equal protection rights.
  • In In re Matyas v. Board of Education, a New York trial court dismissed a teacher’s objections to the Department of Education’s refusal to exempt her from its Covid vaccine mandate. The teacher, citing her Catholic faith and recent conversion to an unspecified Evangelical Protestant sect, argued that her religious beliefs prevented her from receiving any vaccination. The court ruled that she failed to demonstrate that the city’s vaccine mandate was based on religion or that her views on vaccinations were an established doctrine in either Catholicism or Evangelical Protestantism.
  • In a historic Vatican trial, prosecutor Alessandro Diddi is defending his charges against 10 figures, including Cardinal Angelo Becciu, over alleged financial crimes. The trial exposes the alleged misuse of the Pope’s funds in speculative investments, such as a $390 million London real estate venture. Cardinal Becciu is additionally accused of misappropriating Vatican funds for personal use and paying ransom fees.
  • Iraqi security forces dispersed protesters seeking to reach the Danish Embassy in Baghdad, following reports of a Quran being burned in Denmark. The incident follows similar protests at the Swedish Embassy, which was set alight due to a planned Quran burning in Stockholm. Despite Denmark’s Foreign Minister condemning the act as an attempt to create division, he notes that burning religious books is not a crime in Denmark.
Posted on by Marc O. DeGirolami

“We Mean What We Do: The New Constitutional Traditionalism”

I’m pleased to report that my book project on traditionalism in constitutional law is now under contract with Cambridge University Press, with the tentative title “We Mean What We Do: The New Constitutional Traditionalism.” The book will bring together many of the themes and arguments from a number of papers that I’ve been working on over the last several years, as well as some new papers I’ll post soon. But most of it will be new material, and I hope to have a few posts at the Forum in the coming months trying out some ideas. More soon!

Posted on by Mark Movsesian

A New Collection of Essays on COVID and Religious Communities

A number of us in law-and-religion have written on what the courts’ (and the Court’s) response to COVID reveals about American church-state law, and free exercise law in particular. Here is a new collection of essays from Temple University Press on what COVID reveals about the politics and sociology of religion in the United States: An Epidemic among My People: Religion, Politics, and COVID-19 in the United States. The editors are Paul A. Djupe (Denison University) and Amanda Frieden (University of Western Ontario). Here’s the publisher’s description:

The pandemic presented religion as a paradox: faith is often crucial for helping people weather life’s troubles and make difficult decisions, but how can religion continue to deliver these benefits and provide societal structure without social contact? The topical volume, An Epidemic among My People, explains how the COVID-19 pandemic stress tested American religious communities and created a new politics of religion centered on public health. 

The editors and contributors consider how the virus and government policy affected religion in America. Chapters examine the link between the prosperity gospel and conspiracy theories, the increased purchase of firearms by evangelicals, the politics of challenging public health orders as religious freedom claims, and the reactions of Christian nationalists, racial groups, and female clergy to the pandemic (and pandemic politics). As sharp lines were drawn between people and their governments during this uncertain time, An Epidemic among My People provides a comprehensive portrait of religion in American public life.

Posted on by L&R Forum

Around the Web

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

  • In Forter v. Young, the 9th Circuit Court of Appeals rejected a former prisoner’s complaints about the procedure used to deny his religious meal accommodation request. In seeking access to kosher meals, the former prisoner cited a Bible verse, and a prison official cited an additional verse to express his disagreement. The court found that the official’s response did not constitute an establishment of religion in violation of the establishment clause.
  • In Doe I v. Cisco Systems, Inc., the 9th Circuit Court of Appeals held that Falun Gong members, who were victims of human rights abuses carried out by China, can move ahead with claims against Cisco Systems and its executives for their assistance that enabled China to carry out monitoring of Internet activity by Falun Gong members. Falun Gong is a religion that originated in China in the 1990’s.
  • In Fitzgerald v. Roncalli High School, Inc., the 7th Circuit Court of Appeals dismissed a suit based on the ministerial exception doctrine where a Catholic high school guidance counselor’s contract was not renewed because her same-sex marriage was inconsistent with the Catholic school’s religious mission. The court found this to be an easy case because of a recent ministerial exception doctrine decision the court issued last year. 
  • In Must v. County of Fillmore, the Minnesota Court of Appeals found that the County of Fillmore did not meet its burden of showing it had a compelling interest in requiring the appellants to use septic tanks in violation of their religious beliefs. The appellants were three members of the Amish community who brought suit against the county under RLUIPA.
  • In Britain, the House of Commons held a 90-minute debate on a current law which gives 26 bishops of the Church of England the right to automatically have seats in the House of Lords.
Posted on by Mark Movsesian · 1 Comment

Classical and Christian Influences on the Founding

The American conception of religious freedom has been influenced strongly by both Enlightenment and Evangelical Christian ideas from the beginning. One need think only of Madison’s famous Memorial and Remonstrance, which skillfully weaves together arguments in both strains. It’s fair to say that conventional scholarship sometimes ignores the role that Christian ideas played in the founding, however. A new book from Cambridge, The Classical and Christian Origins of American Politics, seeks to remedy that. The authors are scholars Kody Cooper (University of Tennessee-Chattanooga) and Justin Buckley Dyer (University of Texas-Austin). Here is the publisher’s description:

There has been a considerable amount of literature in the last 70 years claiming that the American founders were steeped in modern thought. This study runs counter to that tradition, arguing that the founders of America were deeply indebted to the classical Christian natural-law tradition for their fundamental theological, moral, and political outlook. Evidence for this thesis is found in case studies of such leading American founders as Thomas Jefferson and James Wilson, the pamphlet debates, the founders’ invocation of providence during the revolution, and their understanding of popular sovereignty. The authors go on to reflect on how the founders’ political thought contained within it the resources that undermined, in principle, the institution of slavery, and explores the relevance of the founders’ political theology for contemporary politics. This timely, important book makes a significant contribution to the scholarly debate over whether the American founding is compatible with traditional Christianity.

Posted on by L&R Forum

Around the Web

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

  • In Palmer v. Liberty University, Inc., a divided 4th Circuit declined to apply the ministerial exception to a former art professor at Liberty University. One judge argued the professor was indeed a religious “messenger” due to her integration of faith into teaching.
  • In The Satanic Temple, Inc. v. Young, a federal district court in Texas dismissed the Satanic Temple’s challenge to a Texas requirement for a sonogram prior to an abortion on lack of standing and on sovereign immunity grounds. The court refused to grant the group leave to replead its claims, given its lawyer’s increasingly “conclusory, reductive, and intemperate” filings.
  • In Willey v. Sweetwater County School District No. 1 Board of Trustees, a federal district court in Wyoming upheld most of a school district’s policy mandating the use of a student’s chosen name or pronoun by school personnel, despite objections from parents.
  • In Gackenheimer v. Southern New England Conference of the United Church of Christ, Inc., a Connecticut trial court examined a lawsuit brought by a minister who was dismissed from his role at a church’s conference center. The court applied the ministerial exception doctrine to dismiss the minister’s defamation and emotional distress claims, but allowed his contract-related claims to proceed.
  • In State of Ohio v. Sobel, an Ohio appellate court rejected the defendant’s argument that his drug possession sentence was based on his religious use of mushrooms. The court noted, “Sobel failed to establish that he uses psilocybin mushrooms in connection with a sincerely held religious belief,” deeming his beliefs more personal preference than deeply held religious conviction.
Posted on by L&R Forum

Legal Spirits 052: SCOTUS Decides Groff and 303 Creative

In our traditional end-of-term wrap up, Marc and Mark discuss the Supreme Court’s decisions in two cases: Groff v. DeJoy, the Title VII religious accommodations case, and 303 Creative v. Elenis, the website designer case. Were these simple cases masquerading as complicated ones? Do they suggest the Court is rethinking its views on free speech, religious freedom, and anti-discrimination law? Listen in to find out!

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