A programming note: on Wednesday, November 25, I will participate in a roundtable on law and religion sponsored by the Faculty of Law at Lomonosov Moscow State University. The roundtable, organized by Lomonosov Professor Gayane Davidyan, will take place online starting at 17:30 Moscow time. Visitors are welcome. Please use the You Tube link here. The roster for the roundtable, along with the titles of the presentations, is below. Stop by and say hello!
Mark Movsesian, Frederick A. Whitney Professor, Co-Director of Center for Law & Religion, St. John’s Law School, United States, Church-State Cases at the US Supreme Court in 2020
Lina Papadopoulou, Associate Professor, Law School, Academic Coordinator of the Jean Monnet Centre of Excellence “European Constitution and Religion”, Aristotle University of Thessaloniki, Greece, God and the Constitution in a country (Greece) with a prevailing religion
Andrea Pin, Associate Professor, Department of Public, International and Community Law, University of Padua, Italy, The Constitution as an ID
Kathryn Chan, Associate Professor, Faculty of Law, University of Victoria, Canada, The source and scope of religious freedom in Canada
Xavier Barre, Ph.D in Law, Avocat au barreau de Paris, Member of New York Bar and Advocat of Moscow Regional bar
Anton Kanevsky, Associate Professor of Higher School of Economics, Moscow, Russia, Attorney in Jerusalem, The Divine Name in Earthly Affairs: Non-specific Talmudic Legal Principles and Israeli Practice
Gayane Davidyan, Associate Professor, School of Law, Lomonosov Moscow State University, Director Center of Law and Religion, Can God be Constitutional?
For those who are interested, at the Law & Liberty site today, I have an essay on the Karabakh War, now one month old. I argue that the war represents a civilizational clash between democracy and dictatorship and suggest what American can do to ease the crisis. Here’s an excerpt:
America should consider a range of options to help ease the Karabakh crisis, none of which would involve America as a participant in the conflict. First, it can send humanitarian assistance to the region, indirectly if necessary. Second, it can suspend the direct or third-party sale or transfer of military equipment and technology to Azerbaijan. America provided $100 million of military aid to Azerbaijan just in 2018 and 2019, much more than to any other country in the region, ostensibly to help Azerbaijan defend itself against Iran. With Azerbaijan openly purchasing weapons from Iran, that strategy seems counterproductive. America can also suspend military sales and transfers to Turkey while Turkey continues its belligerent policy in Karabakh and elsewhere. If this doesn’t work, America could impose sanctions on both countries.
Finally, America can continue to push Azerbaijan to cease hostilities, return to negotiations, and reach a diplomatic settlement of Karabakh’s status. (After agreeing to one US-brokered ceasefire last weekend, Azerbaijan immediately broke it.) A comprehensive settlement has been in sight for decades: Armenia returns most captured territories to Azerbaijan and allows refugees to return in exchange for some sort of independence for Karabakh. Michael Rubin argues in The National Interest that America should support this idea, which has a precedent in Kosovo: “remedial secession” to protect an endangered minority. After weeks of cluster bombing, not to mention the history of pogroms and other crimes, Karabakh Armenians can never be safe under Azeri rule.
For those who are interested, the St. John’s University Institute for International Communication has posted a video of last week’s panel, “The Crisis in the Caucasus,” on the war in Karabakh. I participated, along with Alek Gevorkyan (St. John’s), Artyom Tonoyan (University of Minnesota), and Siobhan Nash-Marshall (Manhattanville College). Kudos to St. John’s Law 2L Isabel Arustamyan for helping to put it all together. The link is below:
A programming note: this coming Wednesday (October 21), I will participate in a panel here at St. John’s University on the war in Karabakh, “The Crisis in the Caucasus.” Other panelists include Siobhan Nash-Marshall (Manhattanville College) and Artyom Tonoyan (University of Minnesota). The event, which will cover the history of the conflict, its religious implications, and its importance for the international human-rights community, is sponsored by the university’s Institute for International Communication. Details and login information are available at the link.
In First Things today, I have an essay on the Barrett nomination. I argue that Republicans and Democrats both play politics, but that Barrett deserves to be confirmed. Here’s an excerpt:
Another objection is that Judge Barrett will be an activist. Here the argument seems to be that, as a faithful Catholic and member of an ecumenical charismatic group, she will inevitably decide cases on the basis of her religious convictions rather than the law—“the dogma lives loudly within you” and so on. But no evidence of this sort of thing exists in her record as an appeals judge, though that record is, admittedly, brief. In her one essay that raises the subject, Judge Barrett suggests that in cases of conflict she would recuse herself rather than impose her Catholic convictions in place of the law, a position that arguably should concern Catholics more than non-Catholics. And, as my colleague Marc DeGirolami has explained, her writings about stare decisis—the idea that judges should stick to decided cases and not overrule them, even if judges think those cases are wrong—are well within the American legal tradition.
Moreover, as Judge Barrett pointed out in a speech at Hillsdale College last year, keeping one’s ideology out of judging is not a problem limited to Catholics, or believers generally. When “you think about the debate about whether someone’s religion has any bearing on their fitness for office,” she told the students, “it seems to me that the premise of the question is that people of faith would have a uniquely difficult time separating out their moral commitments from their obligation to apply the law.” But that isn’t true. “People who have no faith, people who are not religious” also “have deeply held moral convictions,” she said. “And it’s just as important for those people to be sure . . . to set aside . . . personal moral convictions . . . and follow the law.”
The extent to which judges can and should keep personal moral convictions out of the law is of course a matter of debate. Some constitutional doctrines invite judges to import their convictions into the law, or at least make it difficult for judges to avoid doing so. One example is the “compelling interest test” in free-exercise law, which asks judges to evaluate whether the state has a compelling interest that justifies a burden on religious freedom. But there is no reason to think Judge Barrett would have a harder time setting aside her personal convictions than a secular justice would have setting aside his or hers. Besides, progressives have been arguing for decades that the bench should reflect diverse life experiences, which help judges apply the law in empathetic ways. It’s a little late in the day to argue such a thing is unthinkable.
The Philos Project, a think tank that promotes positive Christian engagement in the Middle East, hosting a briefing last week on the conflict in Nagorno-Karabakh. I participated, along with the Project’s Founder and Executive Director, Robert Nicholson, Research Fellow Van Der Megerdichian, and Armen Sahakyan, Executive Director of the Armenian National Committee of America. I covered the history of the Karabakh conflict, its religious implications, and why Christians in the West should care. A link is now available:
A programming note: tomorrow evening I’ll moderate a panel at St. John’s on the new Court term. The panel, hosted by the law school’s chapter of the Federalist Society, will feature Judge Richard Sullivan of the Second Circuit (and the Center’s Board of Advisers) and Judge Rachel Kovner of the Eastern District. Among the cases we’ll discuss are Tanzin v. Tamvir and Fulton v. City of Philadelphia, two law and religion cases Marc and I have covered in our Legal Spirits podcasts. Fulton, in particular, could be a blockbuster and I’m eager to hear with Judges Sullivan and Kovner have to say about it. The event is open to all St. John’s Law students; please contact the Fed Soc chapter for info.
A programming note: next Friday, October 2, at 11:00 am, the Center will co-host a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” The webinar will feature commentary from law professors, law students, and lawyers on the implications of the coronavirus pandemic, as well as economic and racial justice concerns raised over the past six months. Co-sponsors include the International Center for Law and Religion Studies at Brigham Young University Law School; the Center for the Study of Law and Religion at Emory University Law School; the Program on Church, State & Society at Notre Dame Law School; and the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University’s Charles Widger School of Law. The roster of speakers and further details are available here. Hope you can join us for what will be an excellent program!
At the Law & Liberty site today, I have a review of Louis Fisher’s new book on judicial supremacy, Reconsidering Judicial Finality. Contra Fisher, I argue in favor of judicial supremacy, properly understood as a rebuttable presumption that Court rulings are binding on other political actors and the people as a whole. Here’s an excerpt:
But the better view, and the one most scholars would take, is that Court judgments are presumptively binding in this broader sense. In the great sweep of our constitutional history, resistance to Court rulings has been comparatively rare. The strength of this presumption is impossible to state in categorical terms. Richard Fallon offers a good way to think about it. Judicial supremacy means that “judicial rulings must be obeyed as long as they are intra rather than ultra vires”—that is, as long as they are plausibly “within a court’s authority to render”—and “not unreasonable as judged from the perspective of the President and a majority of the American people.” If our constitutional democracy is tolerably functional, occasions for resisting Court rulings will arise relatively infrequently.
Note that, on a proper view of judicial supremacy, the Court remains free to change its mind and rule differently in subsequent cases. And political actors, as well as the public at large, remain free to try to persuade the Court to do so. After all, unless some litigant brings a challenge, the Court will never have an opportunity to revisit an earlier decision. Lincoln put it well in responding to the Court’s disastrous ruling in the Dred Scott case (1857), in which the Court held that the Constitution did not allow African-Americans to be citizens or Congress to outlaw slavery in federal territories. The Court’s decisions on constitutional questions, Lincoln conceded, “should control, not only the particular cases decided, but the general policy of the country.” Nevertheless, “[w]e know the Court . . . has often overruled its own decisions, and we shall do what we can to have it overrule this.” . . .
Fisher is unfortunately dismissive of arguments in favor of judicial supremacy. “No matter what evidence is presented,” he writes, “some scholars and courts will continue to rely on and promote the doctrine of judicial finality.” But it is not simply obstinance. Good arguments exist for judicial supremacy, including the desirability of settling legal questions and promoting reliance on the part of citizens, who need to know what the law requires at any particular time. Besides, the logic of judicial review itself suggests some sort of judicial supremacy. The Constitution is not simply what the Court says it is; but if the Court’s decisions are not broadly authoritative, constitutional impasses will occur much more frequently—not the end of the world, but not the best situation, either.
Sociologists of religion often distinguish “believing” from “belonging.” There is “belonging without believing”–being formally part of a religious community without having religious convictions–and “believing without belonging”–subscribing to religious claims while remaining formally outside a religious community. For what it’s worth, we Americans tend more towards the latter, especially now, with the rise of the Nones.
Cambridge University Press has released an interesting-looking book by Joseph David (Sapir Academic College, Israel), Kinship, Law and Politics: An Anatomy of Belonging, which no doubt touches on these issues. Here’s the description from the Cambridge site:
Why are we so concerned with belonging? In what ways does our belonging constitute our identity? Is belonging a universal concept or a culturally dependent value? How does belonging situate and motivate us? Joseph E. David grapples with these questions through a genealogical analysis of ideas and concepts of belonging. His book transports readers to crucial historical moments in which perceptions of belonging have been formed, transformed, or dismantled. The cases presented here focus on the pivotal role played by belonging in kinship, law, and political order, stretching across cultural and religious contexts from eleventh-century Mediterranean religious legal debates to twentieth-century statist liberalism in Western societies. With his thorough inquiry into diverse discourses of belonging, David pushes past the politics of belonging and forces us to acknowledge just how wide-ranging and fluid notions of belonging can be.