Upcoming Symposium on Religious Liberty at Loyola University Chicago

A programming note: I’m looking forward to participating in this upcoming symposium on religious liberty in Chicago later this spring. The editors of the Loyola University Chicago Law Journal have put together a great program and I’m honored to be among the contributors. Details below:

Movsesian on Courts’ Responses to COVID Restrictions

I’m happy to announce that my essay, “Law, Religion, and the COVID-19 Crisis,” is now available in the Journal of Law and Religion (Cambridge). The essay discusses courts’ responses to COVID restrictions on public worship worldwide, and what the response of American courts indicates about our deep polarization in this country. Here’s the abstract:

This essay explores judicial responses to legal restrictions on worship during the COVID-19 pandemic and draws two lessons, one comparative and one relating specifically to U.S. law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the United States specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID-19 crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-century pandemic.

Merry Christmas

A Vindication of Christmas (1652)

To all who celebrate tomorrow, Merry Christmas!

On the Recent Vaccine Mandate Cases

In Public Discourse today, I have an essay that explains why the Court has declined to address claims that Covid vaccine mandates in places like Maine and New York violate the First Amendment. Here’s an excerpt:

The Court has not explained its reasons in these cases. But the justices’ caution is not surprising, for a few reasons. First, religious exemption claims generally pose hard questions, which are particularly troublesome in this context. The COVID-19 pandemic has intensified divisions about the value of religion and religious freedom in our country, and the justices might wish to avoid doing something to provoke further conflict. Second, the Maine and New York lawsuits are currently at the preliminary injunction stage, and the factual records in the cases are still unclear. The Court might reasonably think that it should allow the lower courts an opportunity to consider the claims further before it issues any rulings. Finally, the Court might think that state and local governments will themselves see the prudence of offering religious exemptions, as many already have done, considering the difficulties vaccine mandates have created for healthcare and other services.

You can read the whole essay here.

More on The Merchant of Venice

At Law and Liberty today, I have an essay on law in Shakespeare’s The Merchant of Venice,” in which I expand on some themes that Marc and I discussed in our recent Legal Spirits episode. Specifically, I explore the play’s lessons about the limits of law in a pluralist society:

For the people of Shakespeare’s day, Bloom writes, Venice represented the hope that society could transcend religious and cultural differences through commerce—or, rather, through commercial law. Classical liberal thinkers would call later it the doux commerce thesis: allow people to trade freely with each other and they would ignore religious and other differences, which get in the way of profit, and live together peaceably. The give-and-take of the market would train people to cooperate with one another and forego proselytizing. All that was necessary was that the state enforce people’s contracts on equal terms, neutrally and fairly, without giving one group or another the upper hand. Everything else would follow.

Venice was less serene and indifferent to religion than portrayed. But, as a symbol, the city was important. And by drawing the conflict as starkly as he does, Shakespeare means to ask whether the Venetian system can work where intercommunal divisions concern bedrock beliefs and ways of life. His answer is not hopeful. The dispute between Antonio and Shylock over charging interest reflects a deeper conflict about ultimate values that commerce and commercial law cannot resolve. “The law of Venice can force” the two men “to a temporary truce,” Bloom writes, “but in any crucial instance the conflict will re-emerge, and each will try to destroy the spirit of the law; for each has a different way of life which, if it were universalized within the city, would destroy that of the other. They have no common ground.”

Where such common ground does not exist, the law cannot create it. Law, even a neutral law of contracts, inevitably requires judgment: Which agreements should be enforced, and which should not? And judgment inevitably depends on the values people bring to the law from the wider culture. Where people share values, law does a tolerably good job resolving their disputes. One party wins and the other loses, but both can accept the legitimacy of the system. Where moral divisions run deep and the stakes are high, this is not possible. Law alone cannot persuade people to accept decisions that violate their most basic sense of right and wrong.

You can read the whole essay here.

2021 Year-End Message

2021 has been another productive year for the Center. We celebrated our 10th anniversary (postponed for one year by Covid) with an event for alumni and supporters at the Metropolitan Club, expanded the Legal Spirits podcast series to new platforms, discussed Augustine and Shakespeare in our Reading Society, and continued to produce scholarship and opinion essays on law and religion issues in the news. You can read all about it in our annual year-end message, below. Happy Holidays!

Tenth Anniversary Celebration This Month

Here’s a short piece on the Center’s 10th anniversary celebration at the Metropolitan Club earlier this month, which included a judges panel on law-and-religion cases at the Supreme Court and a dinner at which Justice Samuel A. Alito, Jr. offered remarks on the Center’s first decade. Thanks to our board members, alumni, friends and supporters!

Video of Webinar on Cultural Heritage in Law & Diplomacy

Last month, the Center co-sponsored a webinar on cultural heritage in law and diplomacy, along with the Fletcher Initiative at Tufts and the Armenian Studies Program at California State University-Fresno. Among other things, the participants discussed the capacity of international law to offer protection for minority cultural property during armed conflicts, including the current conflict in Nagorno Karabakh. A video of the webinar is now available at the link below. Posts from the participants were made available earlier on this site. Thanks again to our colleagues at Tufts and Cal-State and all the participants!

Video of Webinar on Religious Exemptions

The SNF Agora Institute at The Johns Hopkins University has posted a video of the webinar I participated in this week, on religious freedom in the US. The panel was moderated by The Atlantic’s Rachel Donadio; other participants included K. Healon Gaston (Harvard), Daniel Mach (ACLU) and Asma Uddin (Independent). I greatly enjoyed the panel and am grateful to the organizers for inviting me. Video below:

Webinar on Religious Liberty in France and the US

I’m looking forward to participating this afternoon in a panel on religious liberty issues in the U.S., part of a webinar on Secularism in France and the United States organized by the SNF Agora Institute at Johns Hopkins University. Our very first Center event eleven years ago was a conference on laicite at our Paris campus and I’m looking forward to revisiting these issues. Details at the link: https://snfagora.jhu.edu/event/secularism-and-its-discontents/.