Around the Web

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

  •  In United States v. Village of Airmont, the Southern District of New York entered a consent decree settling a RLUIPA suit brought by the United States Justice Department alleging that the village engaged in religious discrimination by revising its zoning code to make it harder for Jews to worship in their homes. The consent decree increases the space in private homes for worship and removes restrictions that limited whom residents could invite into their homes to pray.
  • In Littlefield v. Weld County School District RE-5J, the District of Colorado refused to dismiss a retaliation claim in which a former high school principal sued the District’s Superintendent alleging that the Superintendent demoted him and subsequently failed to renew his contract because he was a conservative Christian male. He claimed that the Superintendent took action against him because of a motivational speech he had given to the Fellowship of Christian Athletes before school started, the retaliation for which violated his First Amendment rights. 
  • In Bella Health and Wellness v. Weiser, the District of Colorado issued a preliminary injunction barring the state from taking enforcement action–under a law enacted earlier this year–against an anti-abortion pregnancy center which offers and advertises its medication that reverses the effects of an abortion pill based on their religious beliefs. The court found that the law banning the abortion reversal medication is not neutral or generally applicable, thus violating Bella Health’s Free Exercise rights.
  • In Darren Patterson Christian Academy v. Roy, the District of Colorado issued a preliminary injunction barring Colorado from excluding a private Christian pre-school from its Universal Pre-School Program which requires schools in the program to agree that they will not discriminate on the basis of gender, race, ethnicity, religion, national origin, age, sexual orientation, gender identity, citizenship status, education, disability, socio-economic status, or any other identity when hiring employees. The court found that the rule likely interferes with the “ministerial exception,” which permits the school to hire key employees in accordance with its faith.
  • In Mays v. Cabell County Board of Education, the parties jointly dismissed their case before the Southern District of West Virginia after they settled a dispute surrounding an evangelical Christian revival assembly held by a high school during homeroom, which the plaintiffs alleged violated the Establishment Clause. Under the settlement agreement, the school board agreed to, inter alia, amend its policies on religion in schools and to require annual training for teachers regarding religion in schools.
  • In Drummond v. Oklahoma Statewide Virtual Charter School Board, the Attorney General of Oklahoma filed a Petition for Writ of Mandamus and Declaratory Judgment against the Oklahoma Statewide Virtual Charter School Board challenging its approval of the Catholic Archdiocese’s application for a state-funded online religious charter school. The Attorney General’s brief in support alleged that the approval violates the Establishment Clause and would require the state to directly fund other sectarian groups as well.

St. John’s University Panel on Karabakh Next Week

For anyone interested, I’ll be appearing (virtually) this coming Wednesday, November 1, on a panel St. John’s University is sponsoring on the ethnic cleansing of Armenian Christians from Karabakh: “Understanding theNagorno-Karabakh Conflict & Ongoing Humanitarian Crisis.” I’ll join Anna Hess Sargsyan of the Austrian Center for Peace and Artyom Tonoyan of Hamline University. Details below:

Movsesian on RFRA and the Rise of the Nones

The Emory Center for the Study of Law and Religion has published my essay, “RFRA and the New Thoreaus,” which I presented in last week’s online symposium. Here’s an excerpt:

In short, the question whether RFRA’s definition of “religion” includes idiosyncratic, personal beliefs is not entirely clear. To be fair, when Congress enacted RFRA in 1993, one could dismiss the question as peripheral. As I have explained, at the time, more than 90% of Americans claimed a religious affiliation, and the question of idiosyncratic convictions did not have great legal significance. The Rise of the Nones has changed things. As Nones become more established in our religious culture, one can imagine many claims for exemptions based on idiosyncratic spiritual commitments: a vegetarian diet in prison, for example, or the right to wear certain clothing or insignia in the military–or, as has already occurred, an exemption from public health requirements, like vaccination and mask mandates. 

The rise of the Nones thus makes it likely that courts will have to grapple seriously with the definition of religion for purposes of RFRA–as well as the Free Exercise Clause and other laws. As I have argued elsewhere, the best approach would be a flexible one. At its core, religion means a collective phenomenon, a community of believers that exists through time, not a solitary spiritual quest. In common understanding, religion has always suggested a group of people linked together in worship. As sociologist Christian Smith writes, “religions are almost invariably social activities—communities of memory engaged in carrying on particular traditions.” Without a communal structure to give them meaning, religious practices such as prayer, fasting, and so on are incoherent, “simply the strange doings of odd people.” 

You can read the whole essay here.

Legal Spirits 054: Is Classical Law Due for a Comeback?

Recently, many people have been talking about classical law–specifically whether classical law, with its focus on Christian universals and natural law concepts, can make a comeback in American law schools. Will classical law have traction in an academy dominated by positivism, law-and-economics, and critical theories? Would it be a good thing if it did? We’re joined on this episode by Steve Smith (San Diego) and Julia Mahoney (UVA), who recently debated the question in an online forum, here and here. Sparks fly (just kidding–it’s all among friends, as the above picture suggests). Listen in!

Around the Web

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

  • In United States v. Harris, the 5th Circuit Court of Appeals deliberated on whether a defendant, charged with threatening a federal judge and declared incompetent for trial, could be involuntarily medicated despite his religious objections as a Jehovah’s Witness. The court recognized the importance of religious liberty in this context, concluding that it could be considered a “special circumstance” in deciding the permissibility of involuntary medication, according to Supreme Court precedent in Sell v. United States.
  • In Foshee v. AstraZeneca Pharmaceuticals LP, a Maryland federal court dismissed a religious discrimination claim under Title VII by two employees seeking a religious exemption from a COVID-19 vaccine mandate. The court found that their objections, based on what plaintiffs assert was guidance from God or the Holy Spirit and personal concerns about the vaccine, were not strictly religious but intertwined with secular reasons, thus not qualifying for a religious exemption. The court emphasized that their beliefs, being “not subject to any principled limitation in…scope,” amounted to an unverifiable “blanket privilege” not strictly religious in nature.
  • In Hilsenrath v. School District of the Chathams, a New Jersey court reaffirmed its prior decision stating that a 7th grade curriculum on Islam did not violate the Establishment Clause. The court, after a reconsideration prompted by the U.S. 3rd Circuit Court of Appeals, emphasized that the educational materials were not coercively promoting religious establishments forbidden by the First Amendment, leading to a ruling in favor of the school board.
  • In Gospel Light Mennonite Church Medical Aid Plan v. New Mexico Office of the Superintendent of Insurance, a New Mexico federal district court declined to order an injunction that would prevent the state’s insurance superintendent from regulating Health Care Sharing Ministries (HCSMs), cost-sharing organizations intended to cut medical expenses for members. The plaintiffs argued that an official press release, which warned consumers about HCSMs and declared their plans unauthorized insurance products, showed a form of official disapproval of their religious beliefs. However, the court disagreed, and using rational basis review, found that state laws requiring compliance with the Insurance Code were justified and evinced a legitimate governmental concern.
  • In The Matter of James Hogue v. Board of Education of the City School District of the City of New York, the New York Supreme Court Appellate Division upheld the denial of Hogue’s request for a religious exemption from the COVID-19 vaccination mandate for New York City Department of Education employees. It ruled that Hogue failed to prove his objection was based on sincere religious beliefs and that granting an exemption would impose undue hardship on the Department of Education. The court dismissed Hogue’s other arguments, including a lack of cooperative dialogue and issues of timeliness in the appeal process.
  • In Supriyo @ Supriya Chakraborty v. Union of India, India’s Supreme Court declined to recognize same-sex marriages, aligning with government and religious leaders who opposed the petitions. The Court concurred that the power to legislate on marriage resides with the parliament, not the judiciary. The petitioners had advocated for the modification of the Special Marriage Act to be more inclusive by using the term “spouse” instead of specifying gender. Despite refusing to legalize same-sex marriages, the Court did urge the government to explore and implement extended rights and privileges for same-sex couples, suggesting the formation of a committee to examine this prospect.

A New Book on Orthodox Canons

In the debate–mostly friendly nowadays, thankfully–between the Orthodox and Catholic Churches, the importance of canon law has a major place. For the Orthodox, the idea of canon “law” is suspect, since it suggests legalism and an unfortunate focus on abstractions at the expense of economia and the life of the church. That’s why one typically refers to Orthodox “canons” as opposed to “canon law.” For Catholics, the failure to systematize things reflects an unfortunate lack of clarity and logic–and, therefore, a misunderstanding of the proper role of law in promoting justice in the church and in the state as well.

A new book out last month from one of the great figures of Orthodox scholarship, Lewis Patsavos (Holy Cross Greek Orthodox School of Theology), Introduction to Orthodox Canon Law, does use the phrase “canon law” to describe the East’s approach. I’m curious why. But I’m sure the book is worthwhile for anyone seeking to understand more of the Orthodox understanding of these matters. The publisher is Holy Cross Orthodox Press. Here’s its description of the book:

Based on course notes of forty years of teaching, this Introduction to Orthodox Canon Law is a foundational text for students. Chapters cover basic issues for anyone interested in canon law: its sources; the organization, structure, and governance of the Church; the qualifications for ordination, as well as its impediments; and issues of church membership, including reception of non-Orthodox and marriage. Throughout the Introduction, the canonical tradition is presented and thoroughly explained.

Dissolving Liberal Democracy’s Substrata

The sociologist and cultural critic, James Davison Hunter, is well known for his discussion in the 1990s of the concept of “culture war.” Hunter is an astute and insightful diagnostician of the present political and social discontents. On a personal note, his work has influenced my own thinking and writing on many of the matters we often take up at the Forum.

I’m a little early to notice this new book (no cover quite yet), which comes out in February of next year, but here Hunter is with a new volume in the same vein, but which seems to make the point that liberal democracies depend for their survival on other, non-liberal premises and commitments, and these (so he argues) have now been dissolved so completely as to make the political project deeply unstable. The book is Democracy and Solidarity: On the Cultural Roots of America’s Political Crisis (Yale University Press). One to pre-order and to anticipate.

Liberal democracy in America has always contained contradictions—most notably, a noble but abstract commitment to freedom, justice, and equality that, tragically, has seldom been realized in practice. While these contradictions have caused dissent and even violence, there has always been an underlying and evolving solidarity drawn from the cultural resources of America’s “hybrid Enlightenment.”
James Davison Hunter, who introduced the concept of “culture wars” thirty years ago, tells us in this new book that the historic sources of national solidarity have largely dissolved. While a deepening political polarization is the most obvious sign of this, the true problem is not polarization per se but the absence of cultural resources to work through what divides us. All political regimes require some level of consensus. If it cannot be generated organically, it will be imposed coercively.
Can America’s political crisis be fixed? Can an Enlightenment-era institution—liberal democracy—survive and thrive in a post-Enlightenment world? If, for some, salvaging the older sources of national solidarity is neither possible sociologically, nor desirable politically or ethically, what cultural resources will fund liberal democracy going forward?

Around the Web

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

  • A petition for certiorari was filed with the U.S. Supreme Court in Reilly v. City of Harrisburg. Plaintiffs contend that a city ordinance restricting pro-life volunteers from offering one-on-one counseling near a Planned Parenthood facility violates the First Amendment by allowing certain speech within the buffer zone while banning pro-life speech.
  • In Brox v. Woods Hole, Martha’s Vineyard and Nantucket Steamship Authority, the 1st Circuit affirmed in part and vacated in part a trial court’s decision regarding religious vaccine exemptions due to the concern that a COVID-19 vaccine mandate policy would treat religious exemptions differently from medical exemptions.
  • The Department of Justice announced that a grand jury indicted an Indiana man for making death threats against the Anti-Defamation League because of the members’ religion. If convicted on all counts, the defendant could face a maximum penalty of 20 years in prison and a fine of up to $250,000.
  • A settlement has been reached between the federal government and Native American tribes in Oregon over the destruction of a sacred site near Mount Hood. The settlement includes measures to protect the site with a tree or plant barrier, provide access to a quarry for ceremonial and cultural purposes, and allow the plaintiffs to rebuild a stone altar at the location.
  • The Kansas Attorney General wrote a letter to the 10th Circuit requesting an end to the practice of using preferred pronouns for counsel, parties, and witnesses. He argues that the practice infringes on First Amendment rights, may conflict with religious beliefs, and may reveal bias on gender identity issues in ongoing legal matters.
  • California Governor Gavin Newsom vetoed Senate Bill 403, which aimed to ban caste-based discrimination, citing existing laws that already prohibit discrimination based on factors such as race, color, religion, ancestry, and national origin. Critics of the bill argued that it broadly paints the Hindu and South Asian communities as discriminatory.

Japanese Integralism?

Cover Image

There’s a lot of discussion in the American academy today about integralism. The word has various meanings, but the basic definition, as I understand it, is a melding of the spiritual and the political. That is, integralism opposes the Lockean separation of religion and state that has been an essential feature of classical liberalism.

A forthcoming book from Rowman and Littlefield, Religion, State, and Political Culture in Japan: Implications for the Post-Secular World, discusses the relationship of state and religion in Japan. Although it doesn’t use the word, it suggests that Japan has always been rather integralist, in that the country has never had socially influential religions that exist apart from the state. The author, Tokihisa Sumioto (Tokyo Institute for Global Peace and Humanity), appears to argue that Japan should chart a new path. Looks interesting. Here’s the publisher’s description:

Japan had developed a secular civilization long before going through its modern period, characterized by the officially-sanctioned unification of nationalism and state-worship that reached its apotheosis during World War II, followed by the economic growth-oriented post-war period. While the relationship between religion and state has varied significantly over time, what has been consistently observed throughout Japan’s history is the absence of religions that are socially influential but independent from the state, or the absence of a dualistic relationship between religion and state. The kind of political ethos that should underpin democratic principles such as the rule of law and human rights has remained underdeveloped. 

This book examines the concept of “reconstructive postmodernism,” a perspective that has emerged from a normative approach to international relations that emphasizes the need to democratize and humanize the secularistic civilizations based on the reconstruction of spirituality and religiosity. Using this concept, this book offers a number of implications of its findings to the case of Japan and for global governance in the post-secular age more broadly. 

Online Symposium: RFRA at 30 (Oct. 19, 2023)

I’m greatly looking forward to participating in an upcoming online symposium, “The Religious Freedom Restoration Act at 30,” sponsored by Emory’s Center for the Study of Law and Religion. I’ll present a paper on how the rise of the Nones will put pressure on the concept of religious exemptions. Details here. Register to listen in!