Mark and I have this podcast on the oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which occurred last week at the Supreme Court. The podcast covers the central issues that the justices asked about and discussed.
For those who are interested, Fordham’s Orthodox Christian Studies Center has posted a video of last week’s panel on the the persecution of Mideast Christians, in which I participated, along with Sidney Griffith (Catholic University), James Skedros (Hellenic College/Holy Cross Seminary), and Samuel Tadros (Hudson Institute). Fordham’s George Demacopoulous served as moderator. Have a look:
Earlier this week, I had a post at the Liberty Law site on a recent Seventh Circuit decision in the GoTopless case, a challenge to Chicago’s public nudity ordinance, which forbids women, but not men, to remove their tops in public. The majority maintained that the city’s interest in promoting traditional norms justified the ban, but the dissent disagreed, arguing, among other things, that the city was simply promoting outdated cultural stereotypes.
Here’s an excerpt from my post on the case:
Judge Sykes’s opinion suggests that, even after cases like Obergefell, Lawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.
Second, Judge Rovner’s dissent suggesting that the law should follow biology rather than culture is misleading. Of course rules regarding public nudity are a cultural phenomenon. Culture is, among other things, a reflection on human biology; different cultures have different perceptions. In some cultures women appear topless in public; in others they do not. Allowing women to appear topless in public is not to substitute biology for culture, but rather to replace one culture with another—a culture that sees public nudity as appropriate for one that does not. Perhaps that is a good idea, but it has little to do with the objective facts of biology.
You can read the whole post here.
For those who are interested, I’ve done a short video for the Federalist Society explaining the arguments in Masterpiece Cakeshop, the gay wedding cake case, which will be argued tomorrow at the Supreme Court. The link to the video is below:
At the First Things site this morning, I have an essay challenging conventional wisdom on the nascent political alliance between American Evangelicals and the Russian Orthodox Church. Here’s a sample:
With respect, I am skeptical of the consensus on both these points. First, I doubt that this alliance can be deep or long-lasting. True, some Evangelical leaders have spoken well lately of Vladimir Putin, who makes Orthodoxy a major part of his public image, and some Evangelical organizations have cooperated with the Russian Orthodox Church in international conferences on the family. But profound differences in belief and practice exist, which will be very difficult to overcome, assuming either side even wishes to overcome them. Evangelicals are not likely to see the value of venerating icons, for example, and the Orthodox are not likely to accept Evangelical ecclesiology. An alliance between the Catholic and Orthodox Churches, which share much more in terms of practice and spirituality, would make more sense. I also wonder how many people outside the leadership know about the nascent alliance or take it seriously. International conferences are one thing; actual commitment in the pews (assuming there are pews!) is quite another.
Nevertheless—and here is the second point—if an alliance is forming, it does not strike me as necessarily insincere. Politics no doubt play a role. But Evangelicals and Orthodox may also see each other, genuinely, as allies in a conflict with an aggressive progressivism that sets the agenda in the US and on the world stage. Religious conservatives could easily feel under siege and look for reinforcements.
You can read the whole essay here.
All this week, I’ll be posting items on Orthodox Christianity, an important but understudied (at least in America) Christian communion. To start, here’s a new report from the Pew Research Center on Religion and Public Life, “Orthodox Christianity in the 21st Century,” released this month. Orthodox Christianity has relatively few communicants in the United States, mostly immigrants from Orthodox countries and their descendants, as well as a small number of converts, especially from Evangelical denominations. But, globally, Orthodoxy is the third largest Christian communion, after Catholics and Protestants, with a combined number in the hundreds of millions.
Orthodox leaders are becoming increasingly visible in global affairs. For example, the Ecumenical Patriarch has been active on environmental questions. Thanks to an increasingly assertive Russian Church, Orthodoxy is beginning to have an impact in human rights fora like the UN Commission. In fact, even in the US, Orthodox Christians may have had an impact on the last presidential election. At a panel at Fordham University earlier this month, scholar Nicholas Gvosdev pointed out that Donald Trump appealed to Orthodox Christians in places like Michigan–which Trump won with a narrow margin.
The Pew report reveals that although their numbers across the globe are growing in absolute terms, the number of Orthodox Christians has declined relative to Catholics and Protestants. In the Middle East, at least, that decline is explained in part by persecution against Orthodox (and other) Christians in the twentieth century, which continues today. Seventy years of Communist repression in the former Soviet Union and Eastern bloc also didn’t help. But the report reveals a hopeful resurgence of Orthodox Christianity in former Communist countries.
The report pays a lot of attention to the largest Orthodox Church outside Europe, the Ethiopian Orthodox Church (36 million members), one of the five so-called Oriental Orthodox Churches. This is commendable, as people often assume that Orthodoxy is an entirely European phenomenon. Although declining in its historic European home, Christianity is soaring in the global south, including in Africa. In fact, the Ethiopian Church, an ancient Christian body without any colonial associations, may be well positioned to do missionary work across the continent in the coming century.
The report details many interesting facts about Orthodox practice and belief — compared to Catholics and mainline Protestants, for example, the Orthodox are deeply conservative on social issues like gender and marriage — as well as prospects for ecumenism. It will be very valuable for anyone interested in the sociology of Christianity today. (H/T: George Demacopoulos at Fordham’s Orthodox Christian Studies Center, who served as a scholarly adviser on the report).
Thanks to Alan Meese and Nate Oman for hosting me last week at a symposium on Nate’s important new book, “The Dignity of Commerce.” (That’s me, above, interacting with the author). I learned a great deal. Nate has been a guest blogger here at the Law and Religion Forum, and it was good to catch up with him and with Alan, and to make some new friends. The symposium will appear later this year.
At the First Things site today, I have a post on the current blasphemy controversy in Denmark, which Marc discussed here last week. Prosecutors have brought a blasphemy charge against a man who posted a video of himself burning a copy of the Quran. I don’t favor Quran burning, of course. But I ask why a secular, progressive country like Denmark would bring a blasphemy prosecution in 2017:
The ironies abound. Blasphemy prosecutions are not so unusual in Muslim-majority countries, where they often serve as pretexts for the persecution of Christians and other religious minorities. In fact, this month marks the sixth anniversary of the murder of Shahbaz Bhatti, a Christian Pakistani politician who had criticized that country’s blasphemy laws; his murderers called Bhatti “a known blasphemer.” But blasphemy prosecutions are vanishingly rare in the West. In America, the Supreme Court ruled blasphemy laws unconstitutional in 1952. Most European countries have abolished their blasphemy laws; where such laws continue to exist, they are dead letters.
Moreover, Western countries have made opposing blasphemy laws a major international human rights cause. At the U.N. Human Rights Council, America and its European allies have objected strenuously to so-called “Defamation of Religion” resolutions introduced in recent years by Muslim-majority countries, on the ground that such resolutions encourage local blasphemy laws and stifle free expression. Since 2011, American and European diplomats have convinced proponents to accept a compromise resolution, one that condemns discrimination and the incitement of violence against persons on the basis of religion—a resolution protecting believers, rather than beliefs as such.
For a European government to bring a blasphemy prosecution in 2017, therefore, is incongruous, to say the least. And Denmark is one of the least religious places on the planet. True, it has a state church, to which the large majority of Danes belong. But that is mostly a formal thing. Religious belief and observance are quite low. Fewer than a third of Danes say they believe in God; only about 2 percent go to church each Sunday. And Danish authorities have turned a blind eye to blasphemy in the past. In 1997, for example, someone burned a copy of the Bible on a news broadcast on state television. The government did not file charges.
Why is it legal in Denmark to burn the Bible but not the Quran? You can read the whole post here.
At the First Things site today, I reflect on this week’s nomination of Judge Neil Gorsuch to serve on the Supreme Court. In my opinion, he’s likely to be a solid conservative–the sort of judge that any Republican administration in the last generation could have nominated. Here’s an excerpt:
He holds to originalism in constitutional interpretation and textualism in statutory interpretation—two positions that have been the foundation for judicial conservatism since the 1980s. His record in religion cases is reassuring. On the free exercise side, he has shown sensitivity to the right of believers to claim exemptions from laws that substantially burden their religious exercise. And he has done so not only in the famous Hobby Lobby case, in which the claimants were conservative Christians, but in a case involving a Native American prisoner. In fact, his opinion in the latter case, Youngbear v. Lambert, is a sophisticated, engaging essay on the law of religious exemptions generally. Gorsuch is a clear and accessible writer—something one cannot say for many judges.
His opinions on the Establishment Clause side, less well known, are also encouraging. Judge Gorsuch has signaled his opposition to the thirty-year-old “endorsement test,” which forbids state-sponsored displays that a reasonable observer would understand as an endorsement of religion. The test is famously malleable, and Judge Gorsuch has criticized the way his own circuit, in particular, has misinterpreted it to forbid some traditional public displays—including, notably, a Ten Commandments monument. His apparent dissatisfaction with the endorsement test bodes well for restoring a more sane Establishment Clause jurisprudence that honors American traditions.
You can read the whole post here.
This morning at the Law and Liberty site, I have a post on the controversy surrounding President Trump’s executive order on immigration. I criticize the way the order was prepared and released, but also the unhinged reaction to it.
Here’s an excerpt:
And yet, the unhinged reaction to the order also doesn’t help. Don’t believe the hashtags: the order does not ban Muslim immigration to the US or impose a religious test for admission. The language is quite technical, and there are complications I lack space to address here. But, basically, the order does two things. First, it places a temporary ban on the admission of refugees from anywhere in the world, for 120 days, while officials review our current procedures to determine whether further security measures are necessary. After this 120-day period, the government will resume admitting refugees, up to 50,000 this year, under whatever new procedures officials devise.
The government will also be authorized, after 120 days, to give priority to refugees who are religious minorities and subject to persecution in their home countries. In an interview, President Trump indicated that he had Christians in mind. But by its terms the order extends to other religious minorities as well. In other words, it could cover Yazidi refugees from Iraq and Ahmadi Muslim refugees from Pakistan. It is not a unique preference for Christians—an issue I will address more in a moment.
You can read the whole post here.