“The End of the Affair”

I have a little review essay just published by the American Journal of Jurisprudence with this title (Graham Greene, apologies) reviewing Professor Joel Harrison’s recent book, Post-Liberal Religious Liberty: Forming Communities of Charity (CUP 2020). A portion:

“[A]s Joel Harrison observes in his new book, the price extracted from traditional religion for these thawing relations with liberalism was steep. First, the substratum of Christian culture and historical connection with Western nations had to be systematically stripped away to clear a path for the new civil religion of the liberal regime—as Harrison says, a new “true religion” of the modern civic sphere to replace the old one. (24) Second, because traditional religion was always perceived as a threat to the liberal egalitarian political order, it was expanded by that order to encompass an increasing range of phenomena connected to one of liberalism’s own master commitments, individual autonomy. Religion was in this way at once domesticated and subsumed by liberalism, “contained” and trivialized by hypertrophy. (55) Institutional religion, Harrison continues, was “flattened” to what liberalism regards as the most basic constituent fragment, the individual believer. (55) Third, this new capaciousness had the effect of subjecting religion to an assortment of balancing tests at law, in which religion’s importance was perpetually weighed against sundry other quotidian interests. Religion was reduced to one more consideration, no more intrinsically weighty than any other, that the liberal authority could horse-trade and dole out as it pleased. Fourth, it was deemed out of order for government officials and even ordinary citizens to make public appeals to religious authority as a transcendent source of meaning and worth in the activities of the polity. These claims instead had to be translated into the “secular” argot of liberal commitments—“reconceived as just like any other claim of ethical freedom”—to gain admission to the liberal courts of law and politics. (11) If they could not be, they were cordoned off to the “private” sphere. (13)”

Breen and Strang Reply to Interlocutors on Catholic legal education

In 2020, the Journal of Catholic Legal Studies and the Center for Law and Religion co-hosted a symposium on a draft book by Professors John Breen and Lee Strang: “A Light Unseen: A History of Catholic Legal Education.” Deans of several Catholic law schools, as well as other learned academics, offered comments on the manuscript. Those comments were published by JCLS last year.

Professors Breen and Strang have now offered this thorough and very interesting reply, in the new issue of JCLS. Their remarks are well worth your time.

The Center’s 1oth Anniversary Video

Mark and I hope you enjoy this new video, which we put together for the Center’s 10th anniversary (plus one!). It describes the people, activities, projects, and opportunities that make the Center what it is. Here’s to another 10 (plus more)!

Third Session of the CLR Reading Society: Shakespeare’s The Merchant of Venice

We are pleased to announce the third session of the CLR Reading Society, an opportunity open to all St. John’s Law students to discuss works of fiction and non-fiction raising law and religion themes.

Canaletto, “Bucentaur’s Return to the Pier by the Palazzo Ducale”

Our choice for our gathering this time is William Shakespeare’s The Merchant of Venice, one of his two “Venetian plays” (together with Othello) in which Shakespeare explores powerful and tragic themes of religious identity and difference within the civic life of a prosperous republic. In discussing the play, we will also consider Allan Bloom’s essay, “On Christian and Jew: The Merchant of Venice.”

St. John’s Law students interested in the CLR Reading Society should contact Professor DeGirolami, marc.degirolami@stjohns.edu, or Professor Movsesian, movsesim@stjohns.edu. Books are provided for free to students and all are welcome. We will meet online on the evening of Thursday, October 28, 2021, to discuss The Merchant of Venice, so students who would like to join us and require a book should write to us as soon as possible.

“Establishment’s Political Priority to Free Exercise”

I have a new paper, Establishment’s Political Priority to Free Exercise, forthcoming in the Notre Dame Law Review. Here is the abstract:

American law is beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls “the establishment”—has now, and has always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment’s civil religion—the set of transcendent, church-state propositions that supports the political regime’s legitimacy and authority—has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption’s contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty first. Though today’s most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.

Raul J. Muniz, “Protests in Cuba and the Detention of Religious Leaders”

[Editors: The following is a post from St. John’s 3L law student, Raul J. Muniz.]

On July 11, thousands of Cubans in more than 40 cities across the country took to the streets to protest the Cuban government. The island has not seen public demonstrations on this scale in over 62 years since Fidel Castro’s revolutionary forces took power in 1959. The Cuban people have lived under a single-party authoritarian regime where political dissent is punished and repressed. The protests demanding liberty were exacerbated by increasing COVID-19 cases and a failing economy.

Protestors were quickly met with large-scale arrests by security forces and a complete shutdown of internet access to limit communication and prevent videos of the protests from circulating across social media. According to the Foundation for Pan American Democracy (FDP) Center for Incident Reports, at least 750 Cubans have disappeared or have been detained.

The arrests and detentions have included some prominent religious figures. Among those detained were Pastor Yeremi Blanco and Pastor Yarian Sierra of the Berean Baptist Mission, Reverend Yusniel Pérez Montejo of the Eastern Baptist Convention, and Father Jose Alvarez Devesa of the Roman Catholic Church. Cuban authorities also detained Berta Soler, leader of the Ladies in White, an opposition movement founded by wives and relatives of jailed dissidents who silently walk through the streets dressed in white after attending Sunday Mass.

Religion and Religious Freedom in Cuba

Roman Catholicism is the dominant religion on the island, with 60% of Cubans identifying as members of the Roman Catholic Church.

Professor Alejandro Anreus explains, in Catholic Cuba, that by the late 1950s, Catholic leaders were openly challenging President Fulgencio Batista, Fidel Castro’s predecessor, to return to an elected and constitutional democracy. When Castro’s revolutionary forces successfully overthrew Batista’s military dictatorship, Catholic leaders and laity sensed new possibilities in Castro’s promises of an ethically managed government, agrarian reform and land redistribution, literacy campaigns, and other social-justice improvements.

However, after Castro came to power, the Cuban government banned public religious events, expelled Roman Catholic priests, and nationalized Catholic schools. Notably, the Auxiliary Bishop of Havana, Boza Masvidal, was jailed and deported after condemning Castro’s self-declared Marxist-Leninist government. Father Miguel A. Loredo, a Franciscan friar and an outspoken critic of the revolution’s denial of religious freedom, would spend ten years in prison and was forced to leave Cuba. By 1962, 70 percent of priests and 90 percent of nuns had left Cuba.

Tensions between the Church and Cuban government have eased somewhat in more recent years. Pope John Paul II, Pope Benedict XVI, and Pope Francis all have visited the island, and the first Catholic Church since the 1959 revolution was inaugurated in 2019. However, religious expression is limited by state surveillance and control; religious leaders that speak out against the government are subject to government discrimination and harassment.

Role of the Roman Catholic Church

In recent years, the Catholic Church has served as a mediator in negotiating the release of political prisoners and brokering the normalization of relations between the United States and Cuba. Critics of the Cuban government have asserted that the Church has not done enough to confront the government on human rights abuses.

After the protests on July 11, the Cuban Conference of Catholic Religious set up a hotline to advise the families of detainees about pursuing claims of habeas corpus, locating detainees, and providing spiritual and psychological guidance. Cuban bishops issued a statement on July 12 acknowledging “that the people have the right to express their needs, desires and hopes and, in turn, to express publicly how some of the measures that have been taken are seriously affecting them,” and encouraged citizens and the government to seek dialogue. Pope Francis, in his first Angelus Address after being hospitalized for two weeks, extended his support for the Cuban people and prayed for a “society that is more just and more fraternal through peace, dialogue and solidarity.”

Although the protests on July 11 perhaps suggest that Catholic leaders in Cuba are willing to take a stronger stance against the government, it remains unclear what role the Catholic Church will play as Cubans on the island, and Cuban exiles in the United States, demand further and more far-reaching changes.

Second Session of the CLR Reading Society: City of God

Mark and I were very pleased last night to host the second session of our Reading Society, an occasion for students and alumni to gather in the evening to discuss a classic work. Our choice for this session was a selection of books from Augustine’s City of God, together with associated materials drawn from the Letter to the Hebrews and elsewhere. As with our first session on Antigone, this one was a huge success. Our discussion centered around two main issues: Augustine’s two-cities theme; and the idea of a people having common “loves.” Our students were thoughtful and brought fresh insights to the material. They clearly had prepared for the discussion!

We will try to organize at least one new session next fall and are already thinking of possibilities.

Presentation at the U. Arizona Rehnquist Center’s Annual Conference of Constitutional Law Scholars

I was delighted to present a new paper at the University of Arizona Rehnquist Center’s National Conference of Constitutional Law Scholars today. I was on the religion and speech panel, with interesting presentations from Professors Luke Boso; Stephanie Barclay and Justin Collings; and Shaakirrah Sanders.

My paper (not yet in public circulation) is called “Establishment’s Political Priority to Free Exercise,” and it examines which set of principles and commitments underlying each Clause has political priority conceptually, temporally, and as a matter of general significance.

Professor Melissa Murray commented acutely and very helpfully on the draft and the presentation. More soon on this paper.

On Mill’s Influence on Constitutional Law

I have this review at the Liberty Fund Law and Liberty site of Professor John Lawrence Hill’s book, The Prophet of Modern Constitutional Liberalism: John Stuart Mill and the Supreme Court (2020). A bit from the end:

“What may be most puzzling in harm principle arguments is the assertion that they are not moral arguments. Hill repeats this claim in describing Mill’s view that the harm principle eschews “legal moralism.” True, Mill’s moralism is of a peculiar sort—one that steadfastly denies its moralism even as it imposes it. And this, too, is part of Mill’s legacy in American law. “Don’t impose your morality on me!” Such is the complaint, in the high and mighty places of American legal culture, of those most willing to do just that through the harm gambit.

Might it not be better simply to dispense with the harm principle? The advantages are plain. Rather than disguising what are contested moral assertions in the discursive cloak of harm—or its currently fashionable obverse, “health”—we could call deep moral disagreement by its rightful name. The losers would at least lose honestly, and what they lose could be recognized as a loss. They would not suffer the further indignity of explanations that their views are just a category mistake.

Yet regrettably, we seem destined to bear Mill’s burden. Harm-creep and harm-shrink in constitutional law track developments in other cultural arenas, where the concept of harm has enjoyed “semantic inflation” and deflation. And the efficacy of harm claims tends to correspond with who’s up and who’s down anyway. Those who wield cultural influence and can translate what they take to be grievances into legally cognizable harms will feel justified in dismissing the losers’ further losses simply as “not harms.”

A balancing of losses and gains is not enough for the victors, because only a moralized victory that treats them as fully virtuous (or “privileged” but absolved after some modest public abasement) and deserving of their wins will do. Hurts to the wrong sort of people become not matters of regret, but moral imperatives. Those hurts are “non-harm.” All the while, collateral wounds of various sorts accrue and are rendered invisible. It would not be fair to blame Mill for all of this, in legal discourse or elsewhere. Perhaps moral argument in law inevitably has something of this quality—that when the strong do what they can, it is the moral fault of the weak that they suffer as they must.”

Second Gathering of the CLR Reading Society: Augustine’s City of God

City of Men

Mark and I are delighted to announce the second session of the CLR Reading Society, an opportunity open to all St. John’s Law students to discuss works of fiction and non-fiction raising law and religion themes.

Our choice this time is Augustine’s masterwork, The City of God, a philosophical and theological meditation on the nature of God, evil, and human existence in this world and the next. Be assured, students, that we will not read the entire thing! For those who would like to participate, Professor Movsesian and I have made some selections that will not overwhelm you while giving you a sense of the work.

St. John’s Law students interested in the CLR Reading Society should contact Professor DeGirolami, marc.degirolami@stjohns.edu, or Professor Movsesian, movsesim@stjohns.edu. Books are provided for free to students and all are welcome. We will meet on the evening of March 31, 2021, to discuss The City of God, so students who would like to join us and require a book should write to us as soon as possible.