A New Work on the Ministerial Exception

Ten years ago, in Hosanna-Tabor, the U.S. Supreme Court ruled that the First Amendment’s Religion Clauses prohibit the state from interfering with the decisions of religious organizations with respect to the employment of “ministers.” In two more recent cases, Our Lady of Guadalupe School and Biel, the Court returned to the question of which employees, exactly, qualify as ministers, but did not announce a clear test. The debate about how far the exception extends thus seems certain to continue. A forthcoming book from Routledge, The Church and Employment Law, by John Duddington (Cardiff), considers the question and takes a comparative approach to the subject. The book is the latest in the valuable ICLARS Series on Law and Religion. Here is the description from Routledge:

This book examines the current law on the employment status of ministers of religion and suggests reforms in this area of the law to meet the need for ministers to be given a degree of employment protection. The work considers the constant theme in Christian history that the clergy should not be subject to the ordinary courts and asks whether this is justified with the growth of areas such as employment law. The work questions whether it is possible to arrive at a satisfactory definition of who is a minister of religion and, along with this, who would be the employer of the minister if there was a contract of employment. Taking a comparative perspective, it evaluates the case law on the employment status of Christian and non-Christian clergy and assesses whether this shows any coherent theme or line of development. The work also considers the issue of ministerial employment status against the background of the autonomy of churches and other religious bodies from the State, together with their ecclesiology.  The book will be of interest to academics and researchers working in the areas of law and religion, employment law and religious studies, together with both legal practitioners and human resources practitioners in these areas.

The New Thoreaus

I’ve just posted a new draft essay, “The New Thoreaus,” to SSRN. The essay, which will appear in a forthcoming symposium in the Loyola University Chicago Law Journal, discusses the Rise of the Nones and argues that community is crucial to defining religion for legal purposes. Abstract below. Comments welcome!

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the 19th Century Transcendentalist, Henry David Thoreau, would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly 66 million people—now claim, like Thoreau, to follow our own, idiosyncratic spiritual paths. The New Thoreaus already have begun to appear in the cases, including recent vaccine mandate challenges, and courts will increasingly face the question whether purely idiosyncratic beliefs and practices qualify as religious for legal purposes. In this essay, I argue that Yoder’s insight was basically correct: the existence of a religious community is a crucial factor in the definition of religion. Religion cannot mean an exclusively communal phenomenon; a categorical rule would slight a long American tradition of respecting individual religious conscience and create difficult line-drawing problems. Nonetheless, the farther one gets from a religious community, the more idiosyncratic one’s spiritual path, the less plausible it is to claim that one’s beliefs and practices are religious, for legal purposes.

A New Book on Roger Scruton

Back in 2017, we were fortunate enough to host Sir Roger Scruton here at the Center, when he delivered the keynote address and participated in workshops at the second meeting of the Tradition Project, on culture and citizenship. (A video of Sir Roger’s remarks is available here). Later this year, Palgrave Macmillan will release Politics and Art in Roger Scruton’s Conservative Philosophy, a new study of Sir Roger’s philosophical legacy, covering subjects as diverse as politics, art, music, and religion–all of which Sir Roger discussed that night in 2017, as I remember. The author is philosopher Ferenc Horcher (Hungarian Academy of Sciences). Here’s the publisher’s description:

This book covers the field of and points to the intersections between politics, art and philosophy. Its hero, the late Sir Roger Scruton had a longstanding interested in all fields, acquiring professional knowledge in both the practice and theory of politics, art and philosophy. The claim of the book is, therefore, that contrary to a superficial prejudice, it is possible to address the philosophical issues of art and politics in the same oeuvre, as the example of this Cambridge-educated analytical philosopher proves.

Accordingly, the book has a bold thesis on the general, theoretical level, mapping the connections between politics, art and philosophy. However, it also has a pioneering commitment on the level of the particular, offering the first full-length study into the philosophical legacy of Roger Scruton, probably the most important British conservative philosopher of the late 20th and the first decades of the 21st century. It also allows reader to look into the philosopher’s fascination with Central European art and culture. Finally, it also provides a daring analysis of the late Scruton’s metaphysical inspirations, connecting the arts, and especially music, with religion and the bonds of love.

A New Translation of Ficino

This is more in Marc’s wheelhouse than mine, but here goes. Marsilio Ficino was a Renaissance humanist, director of the new iteration of Plato’s Academy that Cosimo de Medici tried to establish in Florence and tutor to Cosimo’s son, Lorenzo the Magnificent. The Florentine Renaissance was an attempt to meld pagan and Christian thought; like many such attempts, it was extraordinarily productive but quite unstable, as Savonarola, another Florentine, demonstrated. This new translation of Ficino’s work, On the Christian Religion, to be released by the University of Toronto Press later this year, looks very interesting. The translators are Dan Attrell and David Porecca, both of the University of Waterloo, and independent scholar Brett Bartlett. Here’s the publisher’s description:

This is the first translation into English of Marsilio Ficino’s De Christiana religione, a text first written in Latin in 1474, the year after its author’s ordination in the Roman Catholic Church. On the Christian Religion is this Florentine humanist’s attempt to lay out the history of the religion of Christ, the Logos (“Word” or “Reason”), in accordance with the doctrines of ancient philosophy. The work focuses on how Christ in his pre-incarnate form was revealed as much to certain ancient pagan sages and prophets as to those of the Old Testament, and how both groups played an equal role in foreshadowing the ultimate fulfillment of all the world’s religions in Christianity.

The first part elucidates the history of the prisca theologia – the ancient theology – a single natural religion shared by the likes of Zoroaster, Hermes Trismegistus, Orpheus, Aglaophemus, Pythagoras, and Plato, and how it was fulfilled by Christ’s incarnation and the spread of his Church through his apostles. The second part of the work, however, constitutes a series of attacks against the ways in which the Old Testament were variously interpreted by Islamic and, more importantly, Jewish sages who threatened Ficino’s own Christological interpretations of Scripture.

This new English translation includes an introduction that situates the text within the broader scope of Ficino’s intellectual activity and historical context. The book allows us to encounter a more nuanced image of Ficino, that of him as a theologian, historian, and anti-Jewish, anti-Islamic, anti-pagan polemicist.

Weinberger on Church Autonomy: A Matter of Jurisdiction?

Our friend Lael Weinberger, who has just finished an Olin-Searle-Smith Fellowship at Harvard Law School and begun a clerkship with Justice Neil Gorsuch, has posted a new draft, Is Church Autonomy Jurisdictional?, on SSRN. The draft, prepared for a symposium last spring at Loyola University Chicago Law School, carefully analyzes the use of the word “jurisdictional” in discussions of church autonomy and shows that the term conveys a number of different meanings, only some of which are apposite. Very much worth reading! Here’s the abstract:

The First Amendment’s religion clauses create what courts have called church autonomy doctrine, protecting the internal self-governance of religious institutions. But courts are divided as to whether this doctrine is simply an affirmative defense for religious institutions or a jurisdictional limitation on courts’ ability to adjudicate. Scholars meanwhile have long debated whether church autonomy is jurisdictional at a higher level of abstraction, speaking of jurisdiction as a concept of authority rather than a technical term for civil procedure. This paper engages this multilevel debate with an argument for unbundling. First, it urges unbundling conceptual jurisdiction from judicial jurisdiction. Jurisdiction in the conceptual sense can be a helpful a way of talking about institutional authority relevant to church autonomy. But church autonomy is not properly jurisdictional for purposes of civil procedure. Second, this paper proposes unbundling the array of procedural issues that could be resolved under the label of jurisdiction. This paper argues that it is a mistake to try to use the term jurisdiction to solve the interesting problems. It is better to disaggregate the issues that sometimes come under the label of jurisdiction and instead consider them one at a time. The paper concludes by looking to another quasi-jurisdictional body of law—sovereign immunity—for clues as to how to handle issues such as interlocutory appeals, waiver, and forfeiture in the church autonomy space.

A Writeup on This Month’s Conference in Rome

Here’s a writeup (with photos!) on our conference this month in Rome, co-hosted with LUMSA University, on liberalism, religious exemptions, and hate speech regulations. We’ll post papers from the conference in due course. Meanwhile, thanks to the participants: keynoters Cesare Mirabile and Chantal Delsol, and Professors Stephanie Barclay (Notre Dame); Paolo Cavana (LUMSA); Gayane Davidyan (Lomonosov); Richard Ekins (Oxford); Monica Lugato (LUMSA); Adelaide Madera (Messina); Javier Martínez-Torrón (Complutense); Marco Olivetti (LUMSA); Andrea Pin (Padua); Jeffrey Pojanowski (Notre Dame); Angelo Rinella (LUMSA); Steven Smith (San Diego); and Kevin Walsh (Catholic University of America).

Augustine and Contemporary Social Issues

Readers of the Forum know that we have a special interest in Augustine. We’ve noted a number of books about him, and covered City of God last year in our Reading Society. This month, Routledge publishes a collection of essays applying Augustine to present-day debates, Augustine and Contemporary Social Issues, edited by theologian Paul L. Allen (Corpus Cristi College–Vancouver). Looks interesting. Here’s the publisher’s description:

This book focuses on applying the thought of Saint Augustine to address a number of persistent 21st-century socio-political issues. Drawing together Augustinian ideas such as concupiscence, virtue, vice, habit, and sin through social and textual analysis, it provides fresh Augustinian perspectives on new—yet somehow familiar—quandaries. The volume addresses the themes of fallenness, politics, race, and desire. It includes contributions from theology, philosophy, and political science. Each chapter examines Augustine’s perspective for deepening our understanding of human nature and demonstrates the contemporary relevance of his thought.

The Shadow of God

It’s not a new insight that many contemporary secular movements substitute for God. Communism, nationalism, left-liberalism, and other encompassing causes offer a kind of transcendence for individuals, who can find meaning in commitments to moral progress in the world. But what happens when progress doesn’t occur? The failure of secular movements to deliver can lead to great frustration and bitterness, without the consolations of ultimate justice in the world to come. That, suggests Harvard philosopher Michael Rosen in a new book from Harvard University Press, The Shadow of God, is our current predicament. Here is the publisher’s description:

Once in the West, our lives were bounded by religion. Then we were guided out of the darkness of faith, we are often told, by the cold light of science and reason. To be modern was to reject the religious for the secular and rational. In a bold retelling of philosophical history, Michael Rosen explains the limits of this story, showing that many modern and apparently secular ways of seeing the world were in fact profoundly shaped by religion.

The key thinkers, Rosen argues, were the German Idealists, as they sought to reconcile reason and religion. It was central to Kant’s philosophy that, if God is both just and assigns us to heaven or hell for eternity, we must know what is required of us and be able to choose freely. In trying to live moral lives, Kant argued, we are engaged in a collective enterprise as members of a “Church invisible” working together to achieve justice in history. As later Idealists moved away from Kant’s ideas about personal immortality, this idea of “historical immortality” took center stage. Through social projects that outlive us we maintain a kind of presence after death. Conceptions of historical immortality moved not just into the universalistic ideologies of liberalism and revolutionary socialism but into nationalist and racist doctrines that opposed them. But how, after global wars and genocide, can we retain faith in any conception of shared moral progress and, if not, what is to become of the idea of historical immortality? That is our present predicament.

A seamless blend of philosophy and intellectual history, The Shadow of God is a profound exploration of secular modernity’s theistic inheritance.

Evangelicalism and Migrants

We’ll see what happens, but one of the big political stories of 2022 seems to be a movement of Latino voters to the Republican Party. I’ve thought for some time that an underreported element in this story is a movement of Latinos to evangelical Christianity. A new book from Princeton University Press, In the Hands of God: How Evangelical Belonging Transforms Migrant Experience in the United States, by anthropologist Johanna Bard Richlin (University of Oregon) explores the latter phenomenon. Here’s the publisher’s description:

Why do migrants become more deeply evangelical in the United States and how does this religious identity alter their self-understanding? In the Hands of God examines this question through a unique lens, foregrounding the ways that churches transform what migrants feel. Drawing from her extensive fieldwork among Brazilian migrants in the Washington, DC, area, Johanna Bard Richlin shows that affective experience is key to comprehending migrants’ turn toward intense religiosity, and their resulting evangelical commitment.

The conditions of migrant life—family separation, geographic isolation, legal precariousness, workplace vulnerability, and deep uncertainty about the future—shape specific affective maladies, including loneliness, despair, and feeling stuck. These feelings in turn trigger novel religious yearnings. Evangelical churches deliberately and deftly articulate, manage, and reinterpret migrant distress through affective therapeutics, the strategic “healing” of migrants’ psychological pain. Richlin offers insights into the affective dimensions of migration, the strategies pursued by evangelical churches to attract migrants, and the ways in which evangelical belonging enables migrants to feel better, emboldening them to improve their lives.

Looking at the ways evangelical churches help migrants navigate negative emotions, In the Hands of God sheds light on the versatility and durability of evangelical Christianity.

Rediscovering Conservatism

One of the questions we addressed in the first meeting of our Tradition Project back in 2016 was this: is it possible to speak of an American conservatism? Isn’t what we call conservatism in America really just classical liberalism, a philosophy committed to individual rights, the free market, and a limited state that maintains neutrality with respect to religion and other big issues? In a new book from Regnery, Conservatism: A Rediscovery, Yoram Hazony (Edmund Burke Foundation) argues that American conservatism and classical liberalism are two separate things. Here’s the publisher’s description:

The idea that American conservatism is identical to “classical” liberalism—widely held since the 1960s—is seriously mistaken.

The award-winning political theorist Yoram Hazony argues that the best hope for Western democracy is a return to the empiricist, religious, and nationalist traditions of America and Britain—the conservative traditions that brought greatness to the English-speaking nations and became the model for national freedom for the entire world.

Conservatism: A Rediscovery explains how Anglo-American conservatism became a distinctive alternative to divine-right monarchy, Puritan theocracy, and liberal revolution. After tracing the tradition from the Wars of the Roses to Burke and across the Atlantic to the American Federalists and Lincoln, Hazony describes the rise and fall of Enlightenment liberalism after World War II and the present-day debates between neoconservatives and national conservatives over how to respond to liberalism and the woke left.

Going where no political thinker has gone in decades, Hazony provides a fresh theoretical foundation for conservatism. Rejecting the liberalism of Hayek, Strauss, and the “fusionists” of the 1960s, and drawing on decades of personal experience in the conservative movement, he argues that a revival of authentic Anglo-American conservatism is possible in the twenty-first century.