Fulton: A Victory for Religious Freedom?

For interested readers, I have an essay at First Things today on the Supreme Court’s decision last week in the Catholic adoption services case, Fulton v. City of Philadelphia. I argue that the decision represents a victory for religious freedom–though how much of a victory depends on how the Court interprets the case in the future. Here’s an excerpt:

Fulton is surely a victory for religious freedom. In fact, if the Court means what it says, the case is a major victory. True, the chief justice’s opinion avoids a definitive resolution of the conflict between LGBT rights and religious freedom—which probably explains how the chief captured the votes of the Court’s progressives, Breyer, Sotomayor, and Kagan. And true, Smith remains on the books, a result that Justice Alito, joined by Justices Thomas and Gorsuch, lamented in a separate concurrence. 

But if it is true, as Fulton suggests, that even a theoretical possibility of an exception triggers strict scrutiny, Smith does not pose much of a limitation. Moreover, if the Court is serious about strict scrutiny—that the mere possibility of an exception means that the state lacks a compelling interest in applying its rule to any particular litigant—it is hard to envision a religious claimant ever losing one of these cases in future. 

Nonetheless, it would be wise for religiously affiliated adoption agencies and other potential claimants to wait and see what develops before celebrating. The Court’s religion clause jurisprudence is notoriously unpredictable, and the justices may not stick to Fulton’s reasoning in the future. Moreover, the fact-specific nature of the ruling means that the Court can easily distinguish Fulton in subsequent litigation if it wishes to do so. 

You can read the whole essay here.

On Corporate Activism and American Polarization

In First Things today, I write about recent corporate activism and what it reveals about our deep cultural polarization. More and more, employees and customers expect that firms will take stands on contested political issues. This wasn’t supposed to happen. According to liberal theory, the market is supposed to diminish conflicts over religion and big questions. What’s going on?

All this is happening because, contrary to the doux commerce thesis, people do not easily check their values at the door when they enter the marketplace. And in a society as evenly divided and politically saturated as ours, it’s only natural that many people will want the firms for which they work or with which they do business to reflect their side in public debates. “Employees today…want to know what you stand for,” one CEO recently told the Wall Street Journal. That goes for customers, too. In fact, firms may no longer have the option of staying silent on public controversies, since customers increasingly expect corporations to have political and social commitments. “[I]n these fraught times,” a corporate lawyer recently explained at Harvard Law School’s Forum on Corporate Governance, customers often construe silence on a political controversy as itself “a statement.” 

Liberalism depends for its success on habits of mind that liberalism itself cannot create. The doux commerce thesis works fine where people mostly agree on public controversies, or where people believe they can safely remain indifferent to them. In a society like ours, though, where views are polarized and politics is everywhere, it is naïve to think the market will be an exception, or that commerce will somehow cause people to forget about their deep disagreements. Until America reaches a new social equilibrium, our market is likely to be as contentious as everything else.

You can read the essay here.

Movsesian in First Things Today

In First Things today, I have an essay on President Biden’s recent recognition of the Armenian Genocide of 1915–and why that recognition hasn’t translated into practical help for Armenians suffering ethnic cleansing today. Here’s an excerpt:

Recognition of the Armenian Genocide, suddenly, has become one of the few things on which Democrats and Republicans agree. It would be good if the new willingness to speak forthrightly about history translated into practical help for Armenians facing ethnic cleansing today. That, unfortunately, seems a different story. Shortly after his statement on the genocide, President Biden made another decision that indicates that, when it comes to present-day aggression against Armenia, the United States is prepared to look the other way. . . .

Turkey and Azerbaijan would like very much, in Erdoğan’s words last year, to “fulfill the mission of our grandfathers in the Caucasus”—to remove the obstacle that Christian Armenians place in the way of a unified, pan-Turkish mega-state stretching from Istanbul to Central Asia. American leverage could make Turkey and Azerbaijan think twice about pursuing this strategy. But America’s foreign policy establishment continues to see Armenia as a Russian proxy and therefore undeserving of much assistance. Indeed, neoconservatives have cheered Azerbaijan’s aggression against Armenia as a way to contain Russia and, secondarily, Iran. 

This assessment of the situation is wrong and unfair. Surrounded by enemies who would like to make it disappear, Armenia has little choice but to make alliances where it can. Besides, the theory that helping Azerbaijan would weaken Russia has proven spectacularly wrong. As a result of the war, Russia now has military bases both in Armenia and Azerbaijan and wields more influence in the Caucasus than it did before. As for Iran, it voiced its support for Azerbaijan during the war and now hopes to receive Azeri contracts to help with the rebuilding. 

The full essay is available here.

Movsesian on Biden and Genocide Recognition

I had a good talk yesterday with Al Kresta of Ave Maria Radio on President Biden’s statement on the Armenian Genocide and what it means for Armenia today. Here’s the link.

Happy Easter!

Syriac Lectionary (13th Century)

For all who celebrate today, a very Happy Easter. Qom mašiḥo! Šariro’ith qom!

A New Book on Pontius Pilate

I’ve been meaning to post this interesting-looking new book on Pontius Pilate and the trial of Jesus by David Dusenbury, a post-doc at Hebrew University: The Innocence of Pontius Pilate How the Roman Trial of Jesus Shaped History (Hurst). The Gospel accounts paint Pilate as an ambivalent figure, more or less forced by circumstances to issue a sentence of death against Jesus. According to Dusenbury, though, some early Christian writers went further, arguing that Pilate had in fact acted justly at the trial. Dusenbury maintains that arguments about Pilate’s “innocence” helped shape the emerging Christian theory of religious tolerance.

Here’s the publisher’s description:

The gospels and the first-century historians agree: Jesus was sentenced to death by Pontius Pilate, the Roman imperial prefect in Jerusalem. To this day, Christians of all churches confess that Jesus died ‘under Pontius Pilate’. But what exactly does that mean?

Within decades of Jesus’ death, Christians began suggesting that it was the Judaean authorities who had crucified Jesus—a notion later echoed in the Qur’an. In the third century, one philosopher raised the notion that, although Pilate had condemned Jesus, he’d done so justly; this idea survives in one of the main strands of modern New Testament criticism. So what is the truth of the matter? And what is the history of that truth?

David Lloyd Dusenbury reveals Pilate’s ‘innocence’ as not only a neglected theological question, but a recurring theme in the history of European political thought. He argues that Jesus’ interrogation by Pilate, and Augustine of Hippo’s North African sermon on that trial, led to the concept of secularity and the logic of tolerance emerging in early modern Europe. Without the Roman trial of Jesus, and the arguments over Pilate’s innocence, the history of empire—from the first century to the twentyfirst—would have been radically different.

Drakeman, “An Establishment Clause Miracle Story”

Don Drakeman, Distinguished Research Professor at Notre Dame and a member of our Board of Advisors here at the Center for Law and Religion, wrote us recently to pass along this wonderful story about an obscure Christmas carol and our current, perhaps even more obscure, Establishment Clause jurisprudence. We take great pleasure in posting Don’s essay below, and in wishing all our readers a very Merry Christmas, a peaceful holiday season, and a Happy New Year!

* * *

The holidays are a time for inspiring stories, and where better for Law and Religion Forum readers to turn than the Establishment Clause?

            During some family caroling, my daughter Cindy and her husband Richard introduced me to Franz Biebl’s Ave Maria, a breathtakingly beautiful choral work.  This isn’t the famous version by Schubert you hear this time of year.  It’s the one by an obscure 20th century German composer, who spent most of WWII as a POW in Michigan.  The composition is completely different from the Schubert piece, and you’ll only recognize it if you get your music via NPR.

            Herr Biebl’s Ave Maria has become our inspirational story thanks to the 9th Circuit’s 2009 decision in Nurre v. Whitehead.  The seniors in the Jackson High School band were asked to choose what they wanted to play at graduation, and they picked an instrumental version of Biebl’s piece because they thought it would “showcase their talent.”  But the Biebl was nixed by the school administrators on the grounds that “the title and meaning…had religious connotations and would be easily identified as such by attendees.”  The 9th circuit backed them up, saying that the school’s action was an appropriate way to avoid an Establishment Clause problem. 

As far as I can see, the court’s decision required a series of miracles, each involving a degree of faith in the education of America’s youth that, as the KJV might say, “passeth all understanding.”

            The First Miracle:   That anyone was listening.  As a veteran high school band member, I can testify that the one thing the senior class is not doing when the band is playing is paying attention to the music.  The chance that any of them would think, “Wow, what a great piece!  I’ll check the program to see what it’s called” rounds to zero.  But, in this season of miracles, let’s say they did, and learned that it was named Ave Maria.

            The Second Miracle:  That the seniors had any idea what “Ave Maria” means.  I would like to share the judges’ faith that the seniors were well versed in Latin.  Yet, even if they were, Biebl’s effect would more likely be something like this:

            Football Captain:  Are you waving at the band?

Head Cheerleader:  Yes, they are playing that for me.  It’s called, “Hey, Mary.”  Didn’t you pay attention in AP Latin?

            Football Captain:  You have to stop skipping Latin Club meetings.  The Romans didn’t say “Hey,” they said, “Hail.”   This song is in honor of my “Hail Mary” touchdown pass in the championships.

High School football may inspire religious-like devotion, but at least so far, not enough to violate the Establishment Clause.

            The Third Miracle:  That there could possibly be a “primary effect” of advancing religion under the 9th Circuit’s use of the Lemon Test.  In other words, someone had to pay attention to the band, consult the program to learn the title, understand its meaning and religious significance, and then have a sufficiently religious experience that the instrumental rendition of the piece during graduation had a primary effect of advancing religion.  But, if you think about it, we don’t see people falling to their knees in prayer when they hear Josh Groban’s Ave Maria at the mall, and his version actually has words.  Besides, the students most likely to manifest this third miracle involving a traditional Catholic prayer are the Catholic ones, and they were more likely to be graduating from the large Catholic high school just five minutes away.

            Justice Alito called this decision “troubling” in his cert. denial dissent, but I prefer to see it as an inspiring story of faith in our educational system, where classically educated seniors listen to the wind ensemble with rapt attention, and find their religious beliefs profoundly deepened by the simple trigger words, Ave Maria.

            On that inspirational note, if you are seeking to brighten your Christmas season, look no further than Chanticleer’s rendition of Biebl’s Ave Maria on YouTube.  We have it on good authority that it will be a religious experience.

——

Don would like to thank Cindy Drakeman and Richard Wanerman, who not only introduced him to Biebl, but who also appear on this year’s Grammy-nominated recording of the world premier of Kastalsky’s Requiem.  Since the Requiem includes the hymn Rock of Ages, he hopes the Grammys do not get any federal funding because the awards are being given in the 9th Circuit.

Armenia’s Future

In First Things today, I have an essay on the Second Karabakh War: what happened, why it happened, and Armenia’s path for the future. Here’s an excerpt:

Notwithstanding the loss of territory and the terrible loss of life, Armenians should resist despair. Armenia’s history is very long, and things have looked bleak at many points—for example, when the Persians defeated Armenians at the Battle of Avarayr in the fifth century, when Arabs invaded in the seventh, when Turks invaded in the eleventh, and when Mongols invaded in the fourteenth. More recently, there was the 20th-century genocide after which, improbably, Armenians succeeded in reestablishing a state for the first time in several hundred years. 

In the wake of the Second Karabakh War, Armenians need to evaluate their mistakes—especially their misguided optimism about support from Western governments and human rights organizations—accept certain realities, and work to rebuild. Notwithstanding a calamitous history filled with injustice, Armenians have preserved a distinct and continuous Christian witness in the Caucasus for millennia. With God’s help, they will survive this most recent defeat as well. 

You can read the whole essay here.

2020 Year-End Message

This has been a productive year for our Center, featuring regular Legal Spirits podcasts; our biennial colloquium in law and religion; a student reading society; and articles and appearances by Center Co-Directors Marc DeGirolami and Mark Movsesian. You can read all about it in our annual year-end message, here. Happy Holidays!

Movsesian Named Co-Editor of the Journal of Law and Religion

We are delighted to announce that the Journal of Law and Religion (Cambridge University Press) has named Center Co-Director Mark Movsesian to its board of editors. Professor Movsesian will assist the interdisciplinary, peer-review journal in selecting and developing articles for publication.

“I am grateful for the invitation and am delighted to join the Journal‘s editorial board,” Professor Movsesian said. “I look forward to helping the journal continue to explore issues at the intersection of law and religion, both domestically, in the United States, and across the globe.”

More information about the Journal and its editorial board is here.