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!

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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.

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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.

Christianity and Conservatism’s Multiethnic Future

At the First Things site today, I have an essay on how a broad, ecumenical Christianity will feature in a new, multiethnic conservative movement. Here’s a sample:

The factors Salam identifies no doubt figure in minorities’ increasing affinity for conservative politics. But I think his explanation misses another important factor: conservative Christianity. The media typically presents conservative Christians as monolithically white, but that is not the case. For example, about one-quarter of evangelicals are members of racial and ethnic minorities, and Republicans apparently did very well among them. According to Gaston Espinoza, a researcher at Claremont McKenna College who conducted a survey of Latino voters, it was “Latino evangelicals” who “helped Trump to do better than anyone expected in Texas … and in Florida.”

I don’t know of studies that analyze minority voters in terms of church attendance, but in the general population, religious observance correlates with voting for the GOP, and that pattern presumably holds for many minorities as well. According to the AP Vote Cast Survey, people who attend church regularly—up to a few times a month—broke solidly for Trump, 54 percent to 45 percent. People who attend church once a week or more voted 61 percent for Trump. By contrast, people who never attend church went strongly for Biden, 63 percent to 32 percent. (This last figure is consistent with surveys that reveal that more than two-thirds of Democrats “never attend religious services.”) To be sure, differences exist among minority communities; black Christians, for example, continue to vote Democrat in very large numbers. Still, it is reasonable to think that, with respect to minorities, as with respect to the American public generally, the religiously observant tend to vote Republican.

If Republicans are to become a multiethnic, middle-class movement, a popular, ecumenical Christianity of the sort I observed at the Museum of the Bible will likely have an important place in it. In fact, the religious identity of the movement need not be exclusively Christian. Americans are famously non-sectarian when it comes to public religion, and it’s possible to imagine a political coalition of the traditionally religious from all faith communities. Although good studies are difficult to find, some suggest that Orthodox Jews increasingly vote Republican. And President Trump drew one-third of Muslim voters in 2020, a large increase over 2016.

You can read the whole essay here.

Movsesian on the Karabakh Crisis

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.

You can read the whole essay here.

Movsesian on the Barrett Nomination

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.

Movsesian Interviewed about Karabakh on Catholic Radio

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.

“Law, Religion, and Coronavirus in the United States”: Zachary B. Pohlman

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.

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“Law, Religion, and Coronavirus in the United States”: Adelaide Madera

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,[1] 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.

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“Law, Religion, and Coronavirus in the United States”: Christopher Lund

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. 

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“Law, Religion, and Coronavirus in the United States”: Mary Anne Case

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.

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