“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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Conversations: Ashley Berner

berner2015_3_pyramidAshley Berner (left) is an assistant professor and Deputy Director of the Institute for Education Policy at the Johns Hopkins School of Education, and a past guest blogger here at the Law and Religion Forum. Last month, Palgrave Macmillan released her new book, Pluralism and American Education: No One Way to School, in which she advocates a new approach to education in America. It’s a great book, readable and thoughtful. She agreed to answer a few questions about the book, and about her approach, “educational pluralism,” as part of our Conversations series. Our interview covers topics like the costs of state-sponsored uniformity in education, the proper place of religious schools in a pluralist system, and why Ashley thinks of her approach as a middle way. Thanks, Ashley!

L&R Forum: You argue that American education took a wrong turn in the 19th Century, when it moved from a pluralist model to one of state-sponsored uniformity. What’s the history? Why is it particularly relevant for people who study law and religion in America?

Berner: Until the end of the 19th century, school systems in the United States funded a variety of schools – from Jewish and Congregationalist to Catholic and Presbyterian. This was the norm amongst democratic nations, and continues to be. The Netherlands currently funds 36 different types of schools on equal footing; the UK, most Canadian provinces, Sweden, and Singapore (to name a few) support diverse schools as a matter of principle.

In our country, the vast number of 19th century Catholic immigrants threatened the majority Protestant culture and sparked nativist activism at elite and grassroots levels. The Ku Klux Klan and post-Civil War Republicans shared a common resistance to Catholic education. Nativists influenced both Congressional and also legislative agenda. Perhaps the most concrete consequence was the creation of so-called Blaine amendments, named for the U.S. Speaker of the House who tried, and failed, to pass an amendment to the federal constitution that barred funding to religious schools. Thirty-six states passed their own constitutional amendments to this effect. Depending upon how they are constructed, the Blaine amendments seriously impede educational pluralism today. A Blaine amendment case is up before the Court this term; it will be interesting to see what the Court decides.

L&R Forum: You argue for “educational pluralism,” which you say is a “middle path” between state-sponsored uniformity and a libertarian, privatized model. Could you explain what you mean? How would educational pluralism work in practice?

Berner: Educational pluralism asks us to de-couple funding schools and operating schools. Thus in the Netherlands, only 30% of students attend state-funded, state-operated schools, while the rest attend schools that are funded and regulated by the state but Read more

Berner, “Pluralism and American Public Education”

Ashley Berner, the Director of the Johns Hopkins Institute for Education Policy and a past guest blogger here at the Law and Religion Forum, has just written an important and readable book on educational pluralism, Pluralism and American Public Education: No One Way to School (Palgrave Macmillan). I highly recommend it for anyone interested in public education in America, including the place of religious and other non-state schools.

I’ll be doing an interview with Ashley later this month. For now, here’s Palgrave Macmillan’s description of the book:

51qs7fvxql-_sx328_bo1204203200_This book argues that the structure of public education is a key factor in the failure of America’s public education system to fulfill the intellectual, civic, and moral aims for which it was created. The book challenges the philosophical basis for the traditional common school model and defends the educational pluralism that most liberal democracies enjoy. Berner provides a unique theoretical pathway that is neither libertarian nor state-focused and a pragmatic pathway that avoids the winner-takes-all approach of many contemporary debates about education. For the first time in nearly one hundred fifty years, changing the underlying structure of America’s public education system is both plausible and possible, and this book attempts to set out why and how.

 

Dispatches from Kabul: French Words and Fighter Jets

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Former CLR Fellow Jessica Wright ’14 is currently working as an attorney in Kabul, Afghanistan. This post is part of a series of reflections on her experiences there.

There’s an art gallery just off Armenia street in the Mar Mikhail district of Beirut that sells a variety of novelty goods – soap from Aleppo, hand-stamped Iranian linens, black and white photographs from the Lebanese Civil War, books on art. As I was perusing the shelves I came across a notebook with text clippings and war motifs pasted to its cover, a dècoupage of French words and fighter jets. Along the bottom of the front cover there was a phrase: Parce que l’incohérence est preferable à l’ordre qui deforme. It’s a quote from the French philosopher, Roland Barthes, which translates directly to: incoherence is preferable to an order that deforms. I haven’t read Barthes, nor do I claim expertise in French post-structuralism or constructivism or semiotics, but taken on its face, and in light of the unstable political systems in which I live and work, it gave me pause. Dans quelle mesure cette déclaration est-elle correcte? To what extent is that statement true? Precariousness becomes a form of identity in places where nothing sticks – not ideologies, not empires, not armies – but surely chaos and disorder is the regrettable result of circumstance, not rational belief. The fight for successive orders is the history of war, and I imagined Barthes’ words in the mouths of radicals from Raqqa to Kandahar.

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In the late afternoon, the church bells at St. George’s ring out loud and clear across the Martyr’s Square in Beirut, and it feels, for a moment, as if you’re standing in front of the Basilica di Santa Maria Maggiore in Rome, the Marian church that inspired the cathedral’s neoclassical design. Soon after, the call to prayer begins, projected from the 72-meter- Read more

Dispatches from Kabul: An Interlude in the Holy Land

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Former CLR Fellow Jessica Wright ’14 is currently working as an attorney in Kabul, Afghanistan. This post is part of a series of reflections on her experiences there.

Somewhere near Ramallah, we looked up from our newspapers and noticed the high walls topped with razor wire to our left and right, a telltale sign that we were driving through the West Bank section of Route 443, a 16-kilometer stretch of road linking Tel Aviv to Jerusalem. Situated to the east of the security barrier and once ruled off-limits to Israeli government ministers because of a flare-up of violence – namely, Molotov cocktail attacks on vehicles – it appears as any stretch of highway does, grey and a little desolate. Perceiving our awareness, the driver looked at us anxiously through the rearview mirror. “We avoid traffic by taking this road today. To our left is Ramallah and to the right is Hebron,” he said in an official tone, hoping, I think, that we weren’t familiar with the villages of the Palestinian territories. “This one wants to go to Ramallah to see a brewery,” said my friend, Alec. The driver shot me an incredulous look. “Okay, yes, go,” he said. “That is, if you want to risk your life for a beer.” I laughed and Alec explained that my perspective is slightly different because I currently live and work in Kabul. “I just want to feel at home,” I said sarcastically. “This stretch of highway is really doing it for me right now.” He ignored me and started on a lengthy and rather partisan history of the First and Second Intifadas that lasted all the way to the Mamilla neighborhood of Jerusalem where we were staying.

Jaffentrance
Alec and I met on the first day of law school and spent the subsequent three years poring over legal texts and treatises together, a humbling experience that challenged us intellectually and emotionally. It was in the midst of this rational endeavor that we occasionally discussed politics and religion, our conversations about the former often ending with a fiery exchange of epithets and accusations; democratic progressives and classical liberals don’t often see eye-to-eye. But the one subject we could discuss without theatrics was religion, and perhaps more importantly, it was religious ritual that often brought us together with our friends in one place: a Shabbos table in Crown Heights. We spent innumerable evenings there sharing a meal, listening to the Hebrew prayers, and discussing ideas, the law, and our lives. And so it seemed quite natural that we should travel from opposite sides of the world – New York and Kabul – to meet again in the Holy Land, a place that is intensely foreign but intimately familiar to both of us as Americans raised in the Jewish and Roman Catholic traditions.

Holy Sepulchre
The streets of the Old City were nearly empty in the late afternoon on Easter Monday, and as we wandered inadvertently from the Christian Quarter, with its well-lit shops and gregarious shopkeepers, and into the less commercial Muslim Quarter, an eerie silence settled over us. Some idling inhabitants ventured a greeting – A-salaam alaikum – and beckoned us in for tea, but we declined politely and kept walking, feeling that perhaps we had wandered too far off the beaten path. I recalled a friend’s warning: “Don’t go near the Damascus Gate,” and thought about the “No knifing” stickers plastered on utility poles up and down Jaffa Road that we had seen earlier in the day. I wasn’t afraid – a kid with a kitchen knife is less intimidating than a Talib with a Kalashnikov – but the aura of the Old Read more

Dispatches From Kabul: Walls of Separation and the Call to Prayer

Green Zone

Former CLR Fellow Jessica Wright ’14 is currently working as an attorney in Kabul, Afghanistan. This post is part of a series of reflections on her experiences there.

In New York it was the sirens that nettled, piercing through triple-paned glass seventeen stories above the avenue at all hours of the day and night. In Kabul it’s the call to prayer that distracts, albeit less frequently, and which I wake to most mornings. There’s the initial crackle of the loudspeaker, a clearing of the throat, and then a momentary struggle to find the right pitch. The opening words of the azan ring out clearly and confidently – Allahu Akbar – but sometimes, part of the way through, the voice wavers and there is an awkward adjustment of the register, an interruption that could be obviated with the initial use of a pitch pipe or the playing of a middle C, I’ve thought. Then again, I’ve never seen a pitch pipe in Afghanistan, and I suppose it would be difficult to put a piano in a minaret.

Since September, we’ve had a string of mediocre muezzins, criers who never fail to rouse us from our sleep just before dawn, but whose recitations of the takbir and shahada – the Muslim Statement of Faith – leave much to be desired. It’s a bit ironic that they’ve been so lacking, considering that muezzins are traditionally chosen for their superior vocal skills. The first, Bilal ibn Rabah, was supposedly plucked from obscurity by the Prophet Mohammad for his beautiful voice. The idea was that the more melodious and clear the expression, the more powerful the azan, and therefore the more compelling would be the spiritual ideology of Islam sung in those eight verses. Allahu Akbar (four times) / I acknowledge that there is no deity but God (twice) / I acknowledge that Mohammad is the Messenger of Allah (twice) / Hasten to Prayer (twice) / Hasten to success (twice) / Prayer is better than sleep (twice) / Allah is greatest (twice) / There is no deity but God (once). This standard of qualification seems not to be taken seriously in my Kabul neighborhood. Perhaps the benchmark here is pünktlichkeit, in which case I’ve no doubt that our muezzins would be considered rousing successes. It’s disappointing, though, that their rendition of the azan does not resonate across the land as an otherworldly call to the divine.

To make matters worse, our current prayer leader has taken to conversing with himself over the loudspeaker after the initial recitation. The intonation is thoughtful, even philosophical, as if he is contemplating deep and important questions out loud. One morning, as I was lying in bed listening to his slow, punctuated words, I started thinking about America and Constitutional law and Jefferson’s letter to the Danbury Baptists. I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. That wall was adopted by the Supreme Court, becoming authoritative in Reynolds and “high and impregnable” in Everson. In context, Jefferson’s pithy metaphor concerned his opposition to an established national church rather than a belief in strict separationism, but it is a comforting metaphor at dawn while being sermonized over a loudspeaker. In such moments, prayer is not better than sleep.

***

They call the enormous concrete blast wall surrounding the U.S. Embassy near Massoud Circle the King Kong wall because it is a barrier so overwhelming that only a fictional movie monster could surmount it. Last week as we were driving by, a colleague said, “That thing should be considered a wonder of the world.” The grey concrete casts a long shadow on passers-by and dwarfs all of the buildings in its vicinity. I’ve wondered recently if the song of the muezzin reaches past it, through the security maze of the Green Zone, and into the container homes of my compatriots at the U.S. Embassy. It must, I think, since after Read more

Justice Scalia and Conservatism

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This posting was originally a short speech given to students at the University of St. Thomas Law School on February 29.

We will all miss the unique and iconic personality of the late Justice Antonin Scalia. Few if any Supreme Court Justices have been gifted with such charm, humor, charisma and pizzazz. He was a man of great faith; a brilliant and memorable writer; a witty raconteur; a powerful and bracing intellect. He argued law, as he lived life, with passion and gusto. In his impact on the American public, he was in a class of his own: among the Justices of the past, perhaps only Oliver Wendell Holmes, Jr., Robert Jackson, and Thurgood Marshall can be compared to him. One might even say, with all due deference to Senator Cruz, that Justice Scalia was the living epitome of New York values.

But we are here to discuss his influence on the law, especially on constitutional law. And for all his great and varied gifts, his long tenure on the supreme bench, and the vigor and clarity of his opinions, his influence on constitutional law, at least judged from our current perspective, was very limited.

The two doctrines one associates most closely with Scalia’s jurisprudence are, of course, originalism and textualism. Others on this panel will no doubt discuss them, and I will say something about them a bit later. But what I want to consider briefly here is another important but neglected strand in his jurisprudence: his use of custom or tradition in constitutional adjudication. This aspect of his jurisprudence is, in my view, the most distinctively conservative element of it. There is no inherent connection between textualism or originalism and conservatism, but there is such a connection between custom and conservatism.

Nineteenth century legal conservatives such as James Coolidge Carter went so far as to identify law with custom. Or more accurately, they identified the common law with custom. One could say, in that spirit, that the common law identifies, articulates, stabilizes, and occasionally revises and improves, custom. And much of American Read more