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.
You can read the whole essay here.
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 here.
I enjoyed appearing yesterday on Ave Maria radio’s “Kresta in the Afternoon” show to discuss the war between Azerbaijan and Armenia in Karabakh. The host, Al Kresta, was most interested in talking about the effect the war is having on Christians in Karabakh. The effect is substantial. Just today, in fact, Azeri forces shelled the Armenian Orthodox cathedral in the town of Shushi, which I had an opportunity to visit years ago.
My interview with Al is linked here. I appreciate his having me on to discuss this vital topic.
On October 2, 2020, the Center co-hosted a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” Center Co-Director Mark Movsesian moderated one of the webinar’s panels, “Religious Organizations.” The following post, by Zachary B. Pohlman, Editor-in-Chief of the Notre Dame Law Review, was one of the panel presentations. For other Webinar presentations, please check out the websites of BYU’sInternational Center for Law & Religion Studies and Emory’s Center for the Study of Law and Religion.
“Churches” in a Time of Coronavirus
By Zachary B. Pohlman
Regular in-person gatherings at churches, synagogues, mosques, and other places of worship came to a grinding halt in mid-March. Six months later, religious attendees are returning to the pews—but in significantly fewer numbers. Whether churchgoers ultimately return to their pre-pandemic levels of in-person worship remains to be seen. Regardless of whether they do, the coronavirus-induced, steep decline in church attendance—even if only for the short term—could have lasting effects for how we conceive of “churches” from both external and internal perspectives. That is, how we understand churches as both a legal and religious matter could be shaped by the unique challenges presented by the pandemic. (For purposes of this blog post, “churches” refers to houses of worship of all types, including churches, synagogues, mosques, and temples.)
As a legal matter, it has never been easy to pin down what exactly should count as a “religion” or “church.” Coronavirus only complicates things further. Despite the prominence of the First Amendment’s religion clauses in law and society, definitional disputes over these terms have not been litigated first and foremost as a matter of constitutional law. As former IRS Commissioner Jerome Kurtz noted, “Our tax law places the I.R.S. near the forefront in making delicate decisions involving the definitions of ‘religion’ and ‘church’ . . . .” That’s because churches enjoy a number of tax benefits beyond those enjoyed by all other 501(c)(3)’s. The IRS is thus left with the task of deciding what counts as a church for tax-benefit purposes—decisions it makes using a flexible fourteen-factor test.see more
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.
On October 2, 2020, the Center co-hosted a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” Center Co-Director Mark Movsesian moderated one of the webinar’s panels, “Religious Organizations.” The following post, by Adelaide Madera, Professor at Università degli Studi di Messina, was one of the panel presentations. For other Webinar presentations, please check out the websites of BYU’sInternational Center for Law & Religion Studies and Emory’s Center for the Study of Law and Religion.
The Impact of Coronavirus on Public Funding of Religious Organizations
By Adelaide Madera
Since Everson v. Board of Education, access to public funding for religious organizations has been a controversial issue and fiercely litigated. During the pandemic crisis lockdown, the enactment of the CARE Act that established the Paycheck Protection Program, raised new challenges for religious charities.
The PPP appeared attractive to many organizations and businesses, both religious and secular, which needed to maintain their employees on their payroll. However, many concerns arose as to whether religious nonprofits were eligible for government funding, whether accepting PPP loans implied that religious organizations were federal contractors, and to what extent access to public funding could affect their religious identity. On April 3, the SBA issued guidelines to clarify some key points. First, receiving the loan has no implications on church autonomy, religious identity, internal governance, or on the exercise of rights guaranteed by federal statutes (RFRA, section 702 of Title VII, First Amendment). Accepting a PPP loan “constitutes Federal financial assistance” and implies “certain nondiscrimination obligations,” even though they “are not permanent.” The only limitation applies to all beneficiaries: 75% of the loan must be used to cover payroll costs. The SBA’s frequently asked questions underlined that the SBA’s nondiscrimination rules, as Title VII provisions, include an exemption allowing religious organizations to employ staff sharing their religious beliefs “to perform work connected with [the organization’s] religious activities.” The crucial question is whether this exemption allows religious organizations to select employees who also share their standards of behavior. Certain academics incline toward a narrow reading of this provision, and a textualist reading of the expression “because of sex” of Title VII resulted in the Supreme Court’s inclusion of gender identity and sexual orientation under the protection offered by Title VII.see more
On October 2, 2020, the Center co-hosted a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” Center Co-Director Mark Movsesian moderated one of the webinar’s panels, “Religious Organizations.” The following post, by Christopher Lund, Professor of Law at Wayne State University Law School, was one of the panel presentations. For other Webinar presentations, please check out the websites of BYU’sInternational Center for Law & Religion Studies and Emory’s Center for the Study of Law and Religion.
Quarantines, Religious Groups, and Some Questions About Equality
By Christopher Lund
When the government imposes quarantine orders for public safety, shutting some places down and leaving other places open, how should it treat religious organizations and religious services? A natural answer is that religious organizations should be treated equally. And that makes sense. Equality is a solid moral principle, with wide-ranging appeal and deep roots in history and in law.
But equality is not self-executing. And the deeper one goes into these quarantine orders, the more that becomes apparent. We are trying to treat religion equally, but we don’t quite know how. I’m planning a longer piece that will go into more details. But for this blog post, let me simply try to demonstrate two things to you. First, quarantine schemes require judgments about the value of religious exercise—which is uncomfortable in a system like ours, which tries to keep the government out of such questions. And second, by insisting that all gatherings of all religious organizations be treated the same way, quarantine schemes become blind to genuine religious differences. We are deciding how much to restrict religious organizations in general by imagining what happens in a religious service, but our imagined religious service ends up looking a lot like a Sunday morning Christian worship service.See more
On October 2, 2020, the Center co-hosted a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” Center Co-Director Mark Movsesian moderated one of the webinar’s panels, “Religious Organizations.” The following post, by Mary Ann Case, the Arnold I. Shure Professor of Law at University of Chicago Law School, was one of the panel presentations. For other Webinar presentations, please check out the websites of BYU’s International Center for Law & Religion Studies and Emory’s Center for the Study of Law and Religion.
Covid and Egalitarian Catholic Women’s Movements
By Mary Anne Case
In his March 27, 2020 extraordinary message Urbi et Orbi, Pope Francis insisted that the time of coronavirus was “not the time of [God’s] judgement, but of our judgement: a time to choose what matters and what passes away, a time to separate what is necessary from what is not.” The injunction “to seize this time of trial as a time of choosing” offered by the Pope came at what may have been a providential time for egalitarian Catholic women’s movements. As the pandemic closed church buildings worldwide, and both the women and the priests went home and on line, the effect was to energize and unite the former while isolating the latter. As priests celebrated mass alone, women organized worldwide mixed sex, women-centered participatory Zoom liturgies, and worshipped in house churches and in communities of nuns without benefit of clergy. The choices made during the pandemic may have lasting consequences for both the clergy, who may find it increasingly difficult to overcome their isolation and reconnect with their flock, and the women and their supporters, who seem increasingly disinclined to go back rather than forward.
Two video images capture for me the stark choice offered to Catholic feminists in this time of choosing. The first is of Pope Francis, alone in the middle of a vast, fenced-off, rain-drenched St. Peter’s Square delivering the afore-mentioned Urbi et Orbi blessing to the city of Rome and to the world. He is flanked by a holy icon of the Virgin and a crucifix, and accompanied only by a handful of male clergy. The singing that accompanies him consists exclusively of male voices, reminding the listener of longstanding bans on women’s singing in church. Visible in the distance, pressed up against the gates, are a small number of the faithful (or merely curious) sheltering under umbrellas. This brought back the memory of other occasions when women were literally as well as figuratively fenced out. For example, in 2018, during the Synod on Young People, the Faith and Vocational Discernment, several dozen women and men protesting the failure to grant voting rights to any woman at the synod stood outside the gates that led to the synod hall, chanting “Knock, knock.” “Who’s there?” “More than half the church.” Their protests attracted the direct attention of more police than synod fathers.see more
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!