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Tradition and Strict Scrutiny

Over at the Volokh site, I have a post on last week’s decision in Ramirez v. Collier, in which the Supreme Court ruled in favor of a death-row inmate who argued that prison officials violated RLUIPA by refusing to allow him to have a clergy present at his execution. RLUIPA requires prison restrictions to meet strict scrutiny: the state must justify restrictions on religion by showing that it has chosen the least restrictive means of satisfying a compelling interest.

Strict scrutiny, which applies in many areas of constitutional law, in practice operates as a balancing test. Critics (including me) have pointed out that the test is inherently indeterminate, depending largely on the intuitions of the particular judges hearing a case. In a separate concurrence in Ramirez, Justice Kavanaugh argues that tradition can help make the test less subjective:

In Ramirez, for example, prison officials had concluded that the marginal benefit of excluding pastors from the execution chamber outweighed the burden on inmates’ RLUIPA rights. Chief Justice Roberts and the majority evidently disagreed. But how were they to know? “It is difficult for a court applying” strict scrutiny, Kavanaugh wrote, “to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear.” If the justices’ intuitive judgments are all that make the difference, that hardly seems legitimate.

Here, according to Kavanaugh, is where tradition can help. For centuries in American practice, clergy have been present at executions. And that practice continues today. The presence of clergy, in other words, is a living tradition. “Although the compelling interest and least restrictive means standards are necessarily imprecise,” Kavanaugh wrote, “history and state practice can at least help structure the inquiry and focus the Court’s assessment of the State’s arguments.” Kavanaugh wrote separately to emphasize this aspect of the Court’s reasoning.

Here’s a link to my post.

Posted on by Mark Movsesian

Tosato on Biblical Interpretation

Here is an interesting new book from the Pontifical Gregorian University’s press, The Catholic Statute of Biblical Interpretation by Fr. Angelo Tosato, newly translated into English by our friend and frequent academic collaborator, Prof. Monica Lugato of LUMSA. Fr. Tosato, who died in 1999, was a professor at the Lateran and the Gregorian Universities, specializing in Biblical interpretation. But the book is accessible to non-experts as well. Among the topics it covers are the concept of the Bible as a set of divinely inspired texts mediated through human authorship, and the distinction between what Tosato calls “the bishops’ judicial interpretation” of the Bible, which may be authoritative for Catholics at any given time, and the “authentic” interpretation, which is known fully only to God. Because a space inevitably exists between the judicial and authentic interpretation, Tosato argues, the former is always subject to rethinking–guided, of course, by Holy Tradition.

Here is the description of the book from the publisher:

A «rigorous and exhaustive study on the official Catholic doctrine in the realm of Biblical interpretation», this work is «defended by heavily equipped garrisons of quotations in Latin, Greek, and Hebrew, and fortified by walls of Church documents» and based upon a «a profound knowledge of juridical questions and problems». The Author begins by clarifying the definition of the Bible for the Catholic faith, then explores its nature, origin, purpose and functions in relation to its different addressees, finally analysing the prerequisites, criteria, and forms of accurate biblical interpretation. «One detail may draw the reader’s attention. Angelo Tosato asserts, with solid reasons, that the juridical authority of the Magisterium is limited to the actualised interpretation of biblical texts for our world, and has not to deal with the proper exegetical and scientific task of recovering the original meaning of these texts. The Magisterium’s decisions, moreover, can be modified, corrected, and rectified, as every human decision». But this is just one of the many components of the Catholic Statute of biblical interpretation, a Statute that seeks to reveal «the vast and gorgeous panoramas of a truthful interpretation of our Scriptures».

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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:

Loyola University Chicago Law Journal SymposiumDownload
2022 Symposium – Religious Liberty
2022 Symposium – Religious Liberty
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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.

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Merry Christmas

A Vindication of Christmas (1652)

To all who celebrate tomorrow, Merry Christmas!

Posted on by Mark Movsesian · 1 Comment

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.

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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.

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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!

21_CLR_YearEndNewsletterDownload
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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!

Posted on by Mark Movsesian

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!