I’m a little late getting to this, but a few months ago, the Australian Journal of Law and Religion and Emory’s Canopy Forum jointly published a valuable symposium on the rise of the Nones, with a lead article by Jeremy Patrick (University of South Queensland) that responds to some of my writings on the topic. Jeremy and I come to different judgments about whether Nones should qualify as a religion for legal purposes. Jeremy is persuaded they should; I am skeptical. But it’s always nice to receive careful criticism of one’s work, and I’m grateful to Jeremy and to the symposium’s organizers. You can read Jeremy’s essay, titled “A Brief Rejoinder to Movsesian on ‘The New Thoreaus,'” here.
New Paper at SSRN: “Status, Conduct, Belief, and Message”
And, continuing the wedding vendor theme from the last post, my draft paper on the wedding vendor cases, “Status, Conduct, Belief, and Message,” is now available for downloading on the SSRN site. The paper will appear in a forthcoming symposium edition of the Chicago-Kent Law Review. Comments welcome! Here’s the abstract:
This essay explores the constitutional and cultural tensions underlying the “wedding vendor cases,” in which small business owners decline from religious conviction to provide services for same-sex weddings. Litigants often invoke conceptual distinctions among status, conduct, belief, and message, but these distinctions are too indeterminate to resolve the cases in a principled way. The ultimate question is whether LGBT rights should override religious and expressive freedoms in the marketplace. In two recent wedding vendor cases, Masterpiece Cakeshop v. Colorado Civil Rights Commission and 303 Creative LLC v. Elenis, the Court has avoided addressing this fundamental question directly. Instead, the Court has issued narrow rulings based on specific facts and party stipulations, thereby limiting the broader implications of its decisions. While this strategy sacrifices doctrinal clarity and leaves lower courts grappling with uncertainty, it also helps avoid exacerbating cultural polarization on an intensely divisive issue. In the current political climate, incremental case-by-case adjudication—a sort of “passive virtues” approach—may represent a prudent judicial strategy, even if it leaves both sides of the cultural divide dissatisfied.
Movsesian Interviewed on the Wedding Vendor Cases
I was delighted to join my friend and former colleague, Marc DeGirolami, and my friend and Marc’s current colleague, Kevin Walsh, as a guest last week on their excellent podcast, Sub Deo. We discussed the Supreme Court’s recent wedding vendor cases, Masterpiece Cakeshop and 303 Creative. I have a draft on the subject on the SSRN site and thought I’d heard everything about the cases, but Marc and Kevin came up with new and profound questions for me to think about. It was great fun and I thank Marc and Kevin for the opportunity to kick around some ideas. The link is here:
Wilsey on Religious Freedom
A great benefit of my sabbatical several years ago at Princeton’s James Madison Program was having an office next door to Professor John Wilsey. I always enjoyed and learned a great deal from our hallway conversations. Now lots of other people can benefit, too, since John, a church historian at the Southern Baptist Theological Seminary, is out with a new book, Religious Freedom: A Conservative Primer (Eerdmans). Looks very interesting. Here’s the publisher’s description:
In this timely book, historian John D. Wilsey addresses urgent questions about religious freedom in America. How have conservatives historically understood the meaning of religious freedom? How do Americans who identify as conservative now think about religious freedom in this era? What are the differences between the historical and contemporary views, and how do those differences shape fights about religious freedom today?
Writing for fellow Americans concerned about threats to religious liberty, Wilsey draws on US history to explain why rather than weaponizing religious freedom in the context of the culture wars, today’s conservatives need to rally around religious freedom to promote peace between church and state. With wisdom and acuity, Wilsey charts a path forward for thinking about and maintaining a uniquely American tradition: the harmony between liberty and religion that each generation has received as an inheritance from the generations preceding theirs.
Legal Spirits 066: The International Moot Court Competition in Law & Religion
We’re back after a bit of a hiatus with a new Legal Spirits episode. Center Director Mark Movsesian talks with Professors Andrea Pin and Luca Vanoni about the International Moot Court Competition in Law and Religion, an annual event that gathers law students from the US and Europe to argue a case before panels representing the European Court of Human Rights and the US Supreme Court. Andrea and Luca discuss how they came up with the idea for this unique competition, its pedagogical goals, and why it has succeeded for a decade and counting. Listen in!
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Around the Web
Here are some important law-and-religion news stories from around the web:
- In United States v. Safehouse, the Third Circuit heard arguments on whether a nonprofit aiming to open a safe injection site can invoke religious protections under the Free Exercise Clause or RFRA, after a lower court ruled that the founders’ religious motivations alone do not shield the group from federal drug laws.
- In Mennonite Church USA v. U.S. Department of Homeland Security, a D.C. federal court declined to issue a preliminary injunction to reinstate DHS’s “sensitive locations” policy, holding that the plaintiff religious organizations lacked standing to challenge its rescission based on speculative risks of enforcement at places of worship, decreased attendance, restricted services, and added security costs.
- In Catholic Benefits Association v. Lucas, a North Dakota federal court issued a permanent injunction shielding a Catholic diocese and employers’ group from EEOC enforcement of federal anti-discrimination rules in ways that would compel them to support or accommodate abortion, fertility treatments, or gender transitions contrary to their religious beliefs.
- In Kynwulf v. Corcoran, an Ohio federal court dismissed a Free Exercise claim challenging Medicaid’s estate recovery rules, holding that the plaintiff was not coerced into participation and could not demand that the state tailor its program to his religious beliefs.
- In People of the State of California v. Calvary Chapel San Jose, a California appellate court upheld over $1.2 million in fines against the church for violating Covid-era health orders, rejecting its Free Exercise and due process claims by finding the mandates neutral and generally applicable.
- West Virginia signed a new law, the Parents’ Bill of Rights, granting parents wide-ranging authority over their children’s education, healthcare, and moral upbringing, with state interference allowed only under a compelling interest and narrowly tailored means.
Five Views on Natural Law
I’ve enjoyed Zondervan’s “Critical Points” series, which publishes brief and accessible introductions to contested questions in Christian thought. Here is a new volume in the series, Natural Law: Five Views, edited by Ryan Anderson and Andrew Walker. The book brings together scholars of natural law from the Protestant and Catholic traditions, which seem to be working in parallel. Here’s the publisher’s description:
The story of “natural law” – the idea that God has written a law on the human heart so that ethical norms derive from human nature – in twentieth-century Protestant ethics is one of rejection and resurgence. For half a century, luminaries like Karl Barth, Carl F. H. Henry, and Cornelius Van Til cast a shadow over natural law moral reflection because of its putative link to natural theology, autonomous reason, associations with Catholic theology, and ethical witness devoid of special revelation. However, over the past twenty years, Protestant theologians have renewed their interest in the subject, often animated by debates on Christian involvement in the public arena and on matters of life, death, and gender and sexuality. Much of this engagement has happened within Reformed circles and has largely been conducted without reference to Roman Catholic construals of the natural law. Conversely, Catholic developments in natural-law thinking have paid little attention to the surge of interest on the Protestant side. As a result, Protestant and Catholic natural proponents – and even those skeptical of the natural law – are not in conversation with one another.
The lack of dialog between the various schools of natural law has left a historic tradition within Christian moral thought underdeveloped in contemporary Protestant theology. By bringing together a variety of perspectives in much-needed conversation, this book helps readers to understand the various construals of natural law within the broader strands of Christian and classical traditions and clarifies its unique importance for Christian moral witness in a secular culture.
Video of Center Panel on the Catholic Charter School Case
A video of our panel this month in the Catholic Charter School case, Oklahoma Statewide Charter School Board v. Drummond, set for argument at SCOTUS in a couple of weeks, is now available on the Mattone Center’s YouTube channel. Thanks again for Professors Michael Helfand (Pepperdine) and Michael Moreland (Villanova) for participating. Link is below:
Around the Web
Here are some important law-and-religion news stories from around the web:
- In Anchor Stone Christian Church v. City of Santa Ana, a federal district court in California issued an injunction allowing a church to renovate an office building it acquired. The court held that the city’s denial of a conditional use permit to the church violated RLUIPA and the Free Exercise clause.
- An international human rights lawyer urged President Trump to fulfill his campaign promise of facilitating an agreement for the release of Christian Armenian POW’s in Azerbaijan.
- The Georgia legislature passed the Georgia Religious Freedom Restoration Act, which requires that substantial burdens on the exercise of religion be justified by a compelling interest. A clause was added stating that “granting government funding, benefits, or exemptions” would not violate the act.
- Kansas governor Laura Kelly vetoed a House Bill which, if passed, would ensure religious liberty for prospective foster families. The bill was designed to prohibit the state from requiring families to accept certain ideological policies which may conflict with their religious beliefs.
- A federal district court held that two Jewish groups can pursue equal protection and free exercise claims against the University of California, Berkeley, regarding antisemitic treatment.
- India’s parliament passed a new bill that amends the laws governing Muslim land endowments, allowing non-Muslims to manage the properties (known as waqfs).
Video on Chicago-Kent Panel
The panel on religious exemptions from the Chicago-Kent Law Review symposium in which I participated with Stephanie Barclay and Laura Underkuffler is now available on YouTube. Thanks again to the organizers for inviting me. The symposium will appear in print later this year. Meanwhile, keep an eye out for the appearance of the Justice Souter bobblehead at 29:05!