Online Symposium: Two Concepts of Religious Liberty

The Law and Religion Forum is delighted to host an online symposium this month on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” which appears in the current volume of the American Political Science Review (May 2016). Among other things, Muñoz (Notre Dame) argues that, from an originalist perspective, the late Justice Antonin Scalia was correct, in Employment Division v. Smith (1990), that the Free Exercise Clause does not require the state to grant believers accommodations from generally applicable and neutral laws. The Framers’ version of natural rights constitutionalism, he contends, does not require religious exemptions. The original meaning of the clause thus confirms Scalia’s reading.

Muñoz leads off the symposium with a post today. Throughout the month of September, we will post responses from Gerard Bradley (Notre Dame), Donald Drakeman (Notre Dame), Matthew Franck (Witherspoon Institute), George Thomas (Claremont McKenna), Jack Rakove (Stanford), and Corey Brettschneider (Brown). Muñoz will return at the end to offer his thoughts on the respondents’ contributions. Enjoy!

 

Movsesian on Religious Liberty at the Present Time: An Interview with First Things Magazine

Earlier this month, I sat down for an interview with First Things Magazine’s Senior Editor Mark Bauerlein on the state of religious liberty in America today. Our wide-ranging discussion covered topics like religious accommodations, the Hobby Lobby case, church autonomy, and how America’s changing religious culture influences our law. Mark and I also discussed the Center for Law and Religion and its many programs, particularly our newest endeavor, the Tradition Project.

You can view the video on the First Things site, here.

 

 

Symposium: Religious Freedom Today (New York, September 16)

The Center for Law and Religion is pleased to co-sponsor a symposium on Professor Nelson Tebbe’s forthcoming book, Religious Freedom in an Egalitarian Age, here at St. John’s Law School next month. The symposium is also sponsored by the Journal of Civil Rights and Economic Development and the Ronald H. Brown Center for Civil Rights. In addition to the author, participants include Carlos Ball (Rutgers-Newark), Alan Brownstein (UC-Davis), Chad Flanders (St. Louis), Andrew Koppelman (Northwestern), and Patricia Marino (Waterloo). For more information, please click here.

 

The End of the Liberal Tradition?

At the First Things site today, I have an essay about a remarkable new paper from political scientists Roberto Foa and Yascha Mounk on the growing opposition to liberal democracy among American Millennials–especially wealthy Millennials. For example, the authors write, surveys reveal that 35% of wealthy young Americans think it would be a good thing for the military to take over the government!

In my essay, I argue that the surveys reveal the decline of yet another American tradition: liberalism itself:

Liberalism is often understood as propositional, as a series of abstract principles. This understanding has led scholars like Fukuyama to think that liberalism can be easily exported to other cultures; it has formed the basis for much American foreign policy, especially in recent decades. In important ways, this understanding is correct. Liberalism does justify itself largely on the basis of ideas. The Framers of the American Constitution, for example, were strongly influenced by Enlightenment concepts of reason and rational government.

In a deeper sense, though, liberalism generally, and American liberalism specifically, is a tradition, the organic working-out of precedent, over time, in a particular political culture. The American Framers were figures of the Enlightenment, true, but they also thought they were restoring the traditional rights of Englishmen, rights that could be traced back to Magna Carta and beyond. The American conception of religious liberty, for example, is deeply influenced by the historical experience of the English Civil War and the Glorious Revolution, and also by the particular understanding of religion that took hold in a colonial, frontier society. This explains why it differs so much from its cousin on the European continent, the French doctrine of laïcité.

But American culture is changing. Our traditions are not so popular nowadays, including our political traditions; and when we discard our traditions, we can fall for many things, including, apparently, authoritarianism. That, it seems to me, is the upshot of this important paper. The authors identify authoritarianism in our politics with Donald Trump, and it’s easy to recognize Trump’s authoritarian appeal (“I alone can fix it”). But there is authoritarianism on the left, as well, which the authors ignore. American college students increasingly oppose free speech, at least with respect to certain viewpoints, and insist on shutting down speakers with whom they disagree, often with the approval of administrators and faculty who should know better. Not to mention the left’s continuing assaults on religious liberty, including attempts to get nuns to cover contraceptives for their employees and threats to remove the tax-exempt status of religious schools that disapprove of same-sex marriage.

My essay is available here.

Conversations: R.R. Reno

r.r.-reno-web_1R.R. “Rusty” Reno (left) is the editor of First Things and an influential commentator on religion in American public life. He has written an interesting and provocative new book, Resurrecting the Idea of a Christian Society (Regnery 2016), in which he argues for reviving Christianity’s role in American society. The book doesn’t call for a theocracy, but a return to Christian ideas and commitments which, Reno says, can prevent a slide into greater social dysfunction. The book considers, among other things, the proper definition of freedom, the absence of the transcendent in contemporary culture, and America’ s growing economic and social inequality.

In the latest edition in our Conversations series, I ask Rusty some questions about his new book. Among other things, we discuss whether a Christian society is compatible with contemporary notions of pluralism, how Christianity might promote a more secure understanding of freedom and lessen the gap in social capital between rich and poor, and why Reno thinks President Obama personifies our new “post-Protestant WASP elite.”

Rusty, what inspired you to write this book?

Reno: Over the last few years I’ve become convinced that our Christian witness in public life has become too crimped, too focused on hot button issues. Defending innocent life remains vitally important, of course. We need to affirm truths about men, women, sex, and marriage, truths that are now taboos! Religious liberty is also crucial. But important as these issues may be, we’ve got to think more deeply about what’s at stake.

This sent me back to T.S. Eliot’s Idea of a Christian Society, lectures he gave in 1939 when Europe faced a dramatic cultural crisis. Nazism, Fascism, and Communism were ascendant. Many thought liberal democratic culture had no future. Eliot’s contribution—and this clarified my thinking—was to see that the crisis of Western civilization was spiritual. Fascism and Communism were pagan, organizing society around the gods of Nation, Race, Power, History, the Proletariat, and so forth. The answer could not be a liberalism understood as neutrality or tolerance. A Neutral Society, as he put it, could not stand on its own. A Pagan Society could only be countered by a Christian Society, not because Christianity is the only religion capable of sustaining justice and decency, but because Christianity has been the source of the West’s liberalism.

To my mind that remains true. Our paganism is soft and small, not hard and grandiose. We worship the hearth gods of health, wealth, and pleasure. But it’s a cruel paganism and in the book I detail the ways in which it’s especially hard on the poor and vulnerable. I want readers to see that a concern about traditional morality isn’t “moralistic.” It reflects a desire to defend the weak and vulnerable—a crucial biblical imperative.

In the book, you advocate recovering Christian influence in American culture—restoring a Christian society. Yet you recognize that your goals of increased solidarity, return to more limited government, and a renewed sense of the transcendent are consistent with other sorts of societies as well. Why not advocate the goals themselves, rather than a particular faith? Does the answer have to do with the historic role Christianity has in American society?

Reno:  It is true that we could have a Jewish society that embodied many of the qualities I advocate. Perhaps a Muslim or Buddhist society would as well, though I’m less sure. I even imagine that a Neoplatonic Society or Stoic Society would have at least some of the qualities I argue for in the book. But the fact of the matter is that Christianity has been and remains the overwhelmingly predominant “community of transcendence” in the West. Thus, if we want to escape the idols of health, wealth, and pleasure, it’s going to require the resurrection of the idea of a Christian society.

Your question raises the further point of whether we can isolate spiritual-cultural values from living “communities of transcendence.” Why not promote solidarity, argue for Continue reading

The Ten Commandments in the Courthouse

Recently, I visited the New York State Courthouse here in Jamaica, Queens. For readers who don’t know, Queens is one of New York City’s outer boroughs. It is the most ethnically diverse county in the United States, perhaps the most ethnically diverse place in the entire world. About half its population of 2.3 million is foreign born. More than half speak a language other than English at home. About 40% of its residents are white; Asians and African-Americans each make up about a fifth of the population; Latinos a bit more. Statistics on religious affiliation are harder to come by, but apparently about half of the borough’s residents are Christians; of them, Catholics make up the largest percentage, about one-third of the total population. As to the other 50%, Queens has significant numbers of Jews, Muslims, Hindus, Sikhs, Buddhists, and people without formal religious affiliation—the Nones. In terms of religious and cultural variety, Queens has it all.

Given the ethnic and religious diversity of Queens, a work of art I saw in the Queens courthouse surprised me. Decorating the building’s central, ceremonial staircase are a pair of two large WPA-style murals, executed when the courthouse was built during the Great Depression. They make up a unified work. The one on the left, titled “Mosaic Law” (above) shows a crowd of Hebrews surrounding Moses as he descends from Mt. Sinai with the tablets containing the Ten Commandments, written in Hebrew script. The one on the right, titled “Constitutional Law” (below) shows a crowd of historical figures—Washington, the Framers, and Chief Justices from John Jay to Charles Evans Hughes—gathered around a stone plaque with the words of the Preamble: “We the People.”

In one sense, of course, the murals should not have surprised me. Displaying the Ten Commandments in courthouses is an American tradition. It has become an extremely controversial one, however. Litigants have brought numerous constitutional challenges in the last few decades. Courts have reached different conclusions, based largely on the facts of specific cases. About 10 years ago, the US Supreme Court ruled that the display of the Ten Commandments in one Kentucky courthouse violated the Establishment Clause under the so-called “endorsement test.” A reasonable observer, the Court held, would perceive the display as an impermissible, official endorsement of religion. Such an endorsement would send a message of exclusion to non-adherents and make them feel like outsiders in their own community—like disfavored, second-class citizens.

I stood on the staircase for a while and watched people go up and down. Aside from me, no one seemed to notice the murals at all. And I wondered, how could it be, in a place as religiously diverse as Queens, that no one had objected? How could it be that no one had claimed that the murals made him feel like an outsider, a second-class citizen? With thousands of people from different religious backgrounds passing by these murals every day, surely someone would have taken offense and brought a lawsuit. Were people too polite or intimidated to complain? That hardly seems possible, not in Queens. And if someone did bring a constitutional challenge, wouldn’t it have a good chance to succeed? What explains the quietude—the dog that doesn’t bark?

It seems to me there are two explanations. First, it’s quite possible that people in Queens, even the many people from religious traditions other than Christianity, Judaism, and Islam—all of which venerate the Ten Commandments—do not find the display at all offensive. They likely accept it as the tradition of the society in which they have chosen to live. Many of them have immigrated here at great personal cost and are not put off by American customs. Peter Berger and others have written about this phenomenon in the European context. Although European elites often argue that religious minorities find public Christian displays insulting, he explains, little evidence exists that the minorities themselves actually feel offended. Berger describes this misguided, or pretextual, solicitude for religious minorities as the “‘battering ram’ approach to policy making: secular elites make use of other faith communities in order to further their own—frequently secular—points of view.”

Of course, there are plenty of secular elites in New York City, and many of them are lawyers. So why has no one brought a lawsuit over the display at the Queens courthouse? Here we come to the second explanation: such a lawsuit would very likely fail. For one thing, notwithstanding its earlier decisions, it’s not clear that the Supreme Court would continue to apply the endorsement test to courthouse displays of the Ten Commandments. A couple of terms ago, in the Town of Greece case, the Court applied a different test to uphold the constitutionality of official, legislative prayer. Such prayer is constitutional, the Court said, because it is an important part of American tradition—and also because it does not coerce listeners to participate. Courthouse displays of the Ten Commandments are part of American tradition as well, and they also coerce no one. If the Town of Greece test applies, Ten Commandments displays would be constitutional as well.

The Court is notoriously unpredictable in Establishment Clause cases, though, and it could well continue to apply the endorsement test to courthouse displays. Even so, it’s unlikely the Queens murals would be unconstitutional. True, an observer could perceive a religious message. Perhaps the implication is that our fundamental law is of a piece with its divine predecessor, and that we, like the ancient Hebrews, are united by our worship of God. But observers could draw a variety of other messages as well. One very plausible interpretation is this: our Constitution is part of the great tradition of Western law, in which the Ten Commandments play a vital role. Another would be, these are two parallel episodes of lawgiving: Just as the ancient Hebrews were a community bound by a received law, so are we Americans today—although our law comes, not from God, but from the people itself. Perhaps there is no special meaning at all. Perhaps the artist was simply trying to dignify the building in a way that people of the time would find familiar and appropriate.

In short, the mural is not clearly an endorsement of religion. Moreover, it has been there for about 70 years now. As Justice Breyer reasoned in one of the Ten Commandments cases, the fact that a display has gone unchallenged for decades suggests that people do not perceive it as an insult or a religious endorsement. To remove the mural now, on the ground that it impermissibly endorses religion, would suggest that government has an affirmative hostility to faith—a suggestion bound to insult believers and cause even greater social tension than allowing the mural to remain. Although the Court might not allow the mural to be installed in a courthouse today, the fact that it is already in the Queens courthouse gives it a kind of grandfathered status.

So, it seems likely the mural will remain. If you’re in the neighborhood, go take a look. You might also visit the nearby Rufus King Museum, the home of one of the Framers of the Constitution—though not, as far as I can tell, one of the Framers depicted in the mural—and the last Federalist candidate for President of the United States. What he would have thought of the murals’ constitutionality, I’m pretty sure I know.

Human Rights and the Pan-Orthodox Council

Last week, the Eastern Orthodox Church, a communion of 14 autocephalous, national churches with roots in the Byzantine Christian tradition, concluded an historic synod on the island of Crete. Decades in the planning, the Pan-Orthodox Council, known officially as the Holy and Great Council, was meant to gather patriarchs from all 14 churches for deliberation on a series of issues in contemporary church life, including marriage, fasting, the Orthodox “Diaspora,” and relations with non-Orthodox Christians. At the last minute, four national churches, including the largest, the Russian Orthodox Church, declined to attend—a fact which, notwithstanding the protests of the Council’s supporters, seems as a practical matter to undercut the Council’s significance. Nonetheless, the Council is noteworthy for what it had to say on several topics, including the persecution of Mideast Christians and human rights in general. On the latter, the Council’s documents reveal, once again, important differences with the consensus understanding in the West.

First, though, a word about the churches that stayed away. From what I can tell, most (but not all) of these churches demurred in part because of concerns about what the Council might say about relations with other Christians. Ecumenism occasions much dispute within the Eastern Orthodox Church. Some, especially in monastic communities, believe that ecumenism implies that Orthodoxy has abandoned its claim to represent the one true church. Even referring to non-Orthodox Christians as “churches” can cause controversy.

In its declaration, “Relations of the Orthodox Church with the Rest of the Christian World,” the Council adopted (with all respect) a rather lawyerly solution. Yes, the document indicates, there is only one true church, and that is the Eastern Orthodox Church. But “the Orthodox Church accepts the historical name of other non-Orthodox Christian Churches and Confessions that are not in communion with her and believes that her relations with them should be based on the most speedy and objective clarification possible of the whole ecclesiological question.” In other words, the Council accepts that, historically, other Christian communions have been called “churches” (some of them, even, have been called “Orthodox Churches”!) and will work to clarify the situation. It’s an irenic statement. We’ll see how it is received, especially by those within the Orthodox fold who do not think clarification necessary.

Notwithstanding this hedging on the “ecclesiological question,” the Council did go out of its way to decry the persecution of Christians, Orthodox and non-Orthodox, in the Mideast today. In fact, it condemned the persecution of other religious minorities in the Mideast as well. The encyclical issued at the conclusion of the Council states, “The Orthodox Church is particularly concerned about the situation facing Christians, and other persecuted ethnic and religious minorities in the Middle East. In particular, she addresses an appeal to governments in that region to protect the Christian populations – Orthodox, Ancient Eastern and other Christians – who have survived in the cradle of Christianity. The indigenous Christian and other populations enjoy the inalienable right to remain in their countries as citizens with equal rights.” The Council refers to two Christian bishops, one Eastern and the other Oriental Orthodox, who were abducted two years in Syria and whose whereabouts are still unknown.

The Council’s official documents also speak about human rights generally, demonstrating, once again, how important the idiom is in contemporary debate. Today, everyone from secular lawyers to church patriarchs declares a commitment to the ideal of “human rights,” based in the concept of “human dignity.” It is the price of admission to polite discussion. But the Council’s documents reveal, once again, how differently people understand those terms. In today’s human rights discourse, people use the same words, but mean very different things.

The Council’s official documents are not always so easy to follow, but, taken together, they stand for these propositions: human dignity derives from the fact of divine creation; human freedom, correctly understood, is the freedom to progress toward spiritual perfection in Christ; and a secular understanding of human rights, which promotes Continue reading

Happy Independence Day

Independence Hall

To our readers in the United States, a very Happy Independence Day! Let tyrants shake their iron rod.

The Smartphone and the Virgin

Santa Maria dei Miracoli

Santa Maria dei Miracoli, Piazza del Popolo, Rome (March 2016)

For readers who are interested, at the First Things site this morning, I have an essay that updates Henry Adams’s famous meditation on the conflict between technology and tradition, “The Dynamo and the Virgin.”  My essay, “The Smartphone and the Virgin,” was inspired by an advertising billboard I saw hanging on the Church of Santa Maria dei Miracoli in Rome last spring (above), which made me reflect on the challenges the new information technology poses for human community and tradition, especially the Christian tradition.

Here’s a sample:

Like Adams’s dynamo, too, the Smartphone represents forces essentially destructive of tradition. In the civilization of the dynamo, Adams wrote, people found it impossible to honor or even to understand the claims of the past. In his essay, Adams recalled visiting the cathedral of Amiens with the American sculptor Augustus Saint-Gaudens. Adams noticed that Saint-Gaudens seemed unmoved by the spiritual power of the place—by the power of the Virgin, who had made the cathedral possible. Gibbon had felt the energy of Gothic cathedrals when he visited them in the eighteenth century, and had condemned it; Ruskin had praised it in the nineteenth. But by the twentieth, people no longer felt the energy at all. Saint-Gaudens admired the dignity of the architecture and the beauty of the sculptures, but perceived no meaning in them: “The art remained, but the energy was lost even upon the artist.”

The Smartphone likewise acts as a solvent on tradition, including religious tradition. Tradition depends on community—more precisely, on a community that sees itself as existing through time, an idea that is captured in the Christian tradition by the communion of saints. Such a community has claims on the individual by virtue of the fact that it has existed before him and will continue to exist after him. The individual is not completely submerged in the community; that would be a kind of totalitarianism. But he cannot create an entirely new world for himself, either. He draws his identity though his participation in a pre-existing, and in significant respects unchanging, order.

The Smartphone draws the user out from that sort of community. True, the Smartphone can promote a certain kind of community, a network of contacts who share interests, ideologies, even religious convictions. But it favors ephemeral interactions with strangers. It’s very easy to add people to your Contacts list—and just as easy to remove them and replace them with others. More important, the Smartphone encourages the user to spend his time in a virtual world he has curated all for himself. Not to mention the relentless, rapid updating of information to which the Smartphone has accustomed us. What claims can tradition have in a culture that values immediacy over everything else, and that has come to expect an update every five minutes?

You can read my full essay here.

Pope Francis in Armenia

ecuminism

Pope Francis and Patriarch Karekin II of the Armenian Church (Crux)

Last weekend, Pope Francis made an apostolic journey to Armenia, a small, landlocked country of three million in the South Caucasus, bordering Turkey, Iran, Azerbaijan, and Georgia. The official motto of his journey was “Visit to the First Christian Nation,” a reference to Armenia’s being the first state to adopt Christianity as its official religion, in 301 A.D., a matter of great national pride. Only a small percentage of Armenians are Roman Catholics; more than 90% belong to the Armenian Apostolic Church, a member of the Oriental Orthodox communion. Yet Francis received an enthusiastic reception from the Armenian Church hierarchy, the government, and the everyday people who crowded his public events. It’s worth focusing on the reasons for the warm welcome, and on the diplomatic and ecumenical significance of his journey.

Armenia is in a rough neighborhood. To the east, the country is locked in a frozen conflict with Azerbaijan, a majority-Muslim country, over Nagorno Karabakh, a region populated by Christian Armenians that seeks independence from Azerbaijan. A ceasefire has been in effect for about 20 years. In April, Azerbaijan renewed the conflict; Armenians successfully resisted the Azerbaijani attack, and the ceasefire was restored, but nerves remain on edge. To the west, Azerbaijan’s ally, Turkey, another Muslim-majority nation, has closed its border with Armenia, preventing needed economic development. To the north, relations with Georgia are peaceful but mixed; Georgia has its own breakaway regions and leans towards Azerbaijan in the Nagorno Karabakh conflict. The only strategic partner Armenia has in the region is its neighbor to the south, the Islamic Republic of Iran, which, somewhat surprisingly for outsiders, cooperates with Armenia on a number of issues. Armenia also has close relations with Russia. Indeed, the US typically thinks of Armenia as Russia’s proxy in the Caucasus. But the situation is more complicated than that. Russia plays both sides of the conflict in Nagorno Karabakh—it sells weapons to Armenia and Azerbaijan–and Armenians increasingly distrust it. As I say, a rough neighborhood.

The pope’s visit was a welcome sign that the outside world, and especially the West, has not forgotten Armenia. Even more, in Armenia, Francis once again went out of his way to use the word “genocide” to describe the massacre of as many as 1.5 million Armenians in Ottoman Turkey during World War I. Before the visit, the Vatican had suggested Francis Continue reading

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