Law, Religion, and the Covid Crisis

I have a new draft on SSRN, “Law, Religion, and the Covid Crisis,” comparing how courts across the globe have approached restrictions on public worship and exploring what the cases reveal about social divisions, especially in the United States. Here’s the abstract:

This essay explores judicial responses to legal restrictions on worship during the COVID pandemic and draws two lessons, one comparative and one relating specifically to US 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 US, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the US, 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 US, 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 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-lifetime pandemic.

The essay will appear in the forthcoming volume of the Journal of Law and Religion. Comments welcome!

Legal Fictions and Our Constitutional Republic

At the Law & Liberty site today, I have an essay on Steve Smith’s fine new book, Fictions, Lies, and the Authority of Law. I use the essay to address one of Steve’s central claims–our constitutional order is based on a fictional consent that has served us well over time. Can this fiction continue to bind together our increasingly fractured society? Here’s an excerpt from my essay:

Can these two conditions, “plausibility and payoff,” continue to hold? In a prologue, Smith notes that he largely finished this book in the fall of 2019 and could not consider all that has transpired in our country since then. Nonetheless, he doesn’t seem very hopeful, and it’s easy to see why. The events of the past two years suggest that America is coming apart in ways that make the beneficial fiction he describes increasingly hard to maintain. Increasing numbers of Americans no longer identify instinctively with the “We the People” in whose name the Constitution and laws bind us. Indeed, the National Archives now includes a trigger warning on its website for people accessing the Constitution, alerting readers to the “potentially harmful language” they will encounter in the document. As Smith writes, people who see themselves “as systematically oppressed or discriminated against  . . . have little incentive to overlook the fictional quality of the ‘consent’ on which government’s assertion of authority depends.” And our officials seem increasingly dysfunctional—petty, gridlocked, and feckless, unable to end their squabbling long enough to handle a nationwide public-health emergency or withdraw from a military campaign in an ordered, dignified way.

You can read the whole essay here.

Fulton: A Victory for Religious Freedom?

For interested readers, I have an essay at First Things today on the Supreme Court’s decision last week in the Catholic adoption services case, Fulton v. City of Philadelphia. I argue that the decision represents a victory for religious freedom–though how much of a victory depends on how the Court interprets the case in the future. Here’s an excerpt:

Fulton is surely a victory for religious freedom. In fact, if the Court means what it says, the case is a major victory. True, the chief justice’s opinion avoids a definitive resolution of the conflict between LGBT rights and religious freedom—which probably explains how the chief captured the votes of the Court’s progressives, Breyer, Sotomayor, and Kagan. And true, Smith remains on the books, a result that Justice Alito, joined by Justices Thomas and Gorsuch, lamented in a separate concurrence. 

But if it is true, as Fulton suggests, that even a theoretical possibility of an exception triggers strict scrutiny, Smith does not pose much of a limitation. Moreover, if the Court is serious about strict scrutiny—that the mere possibility of an exception means that the state lacks a compelling interest in applying its rule to any particular litigant—it is hard to envision a religious claimant ever losing one of these cases in future. 

Nonetheless, it would be wise for religiously affiliated adoption agencies and other potential claimants to wait and see what develops before celebrating. The Court’s religion clause jurisprudence is notoriously unpredictable, and the justices may not stick to Fulton’s reasoning in the future. Moreover, the fact-specific nature of the ruling means that the Court can easily distinguish Fulton in subsequent litigation if it wishes to do so. 

You can read the whole essay here.

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.

Movsesian Named Co-Editor of the Journal of Law and Religion

We are delighted to announce that the Journal of Law and Religion (Cambridge University Press) has named Center Co-Director Mark Movsesian to its board of editors. Professor Movsesian will assist the interdisciplinary, peer-review journal in selecting and developing articles for publication.

“I am grateful for the invitation and am delighted to join the Journal‘s editorial board,” Professor Movsesian said. “I look forward to helping the journal continue to explore issues at the intersection of law and religion, both domestically, in the United States, and across the globe.”

More information about the Journal and its editorial board is 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.

Philos Project Briefing on the Karabakh Crisis

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:

Movsesian Teaches Class at Moscow State University

I had a wonderful time this morning, teaching a (virtual!) class at Lomonosov Moscow State University on the COVID epidemic and religious exemptions under the US Constitution. Thanks to Professor Gayane Davidyan for inviting me and to her students for their wonderful, thoughtful questions. Lomonsov will post the class on YouTube soon, and I’ll link it when it appears.

UPDATE: Here’s a link to the class. It was a lot of fun!

Center Papers & Activities in 2019

Here is a retrospective list of some of our papers and activities in 2019, with links where available. A warm thanks to our readers, and best wishes for the new year!

Papers

DeGirolami, The Traditions of American Constitutional Law (forthcoming, Notre Dame Law Review 2020).

Movsesian, Masterpiece Cakeshop and the Future of Religious Freedom, 42 Harv. J.L. & Pub. Pol’y 711 (2019).

DeGirolami, First Amendment Traditionalism (forthcoming, Wash. U. L. Rev. 2020).

Movsesian, The Armenian Genocide Today, First Things, November.

DeGirolami, The Sickness Unto Death of the First Amendment, 31 Harv. J.L. & Pub. Pol’y 751 (2019).

Movsesian, Tertullian and the Rise of Religious Freedom, University Bookman, August.

DeGirolami, Notes on a New Fusion, Liberty Fund, July.

Movsesian, Interpreting the Bladensburg Cross Case, First Things, June.

DeGirolami, Cross Purposes, Public Discourse, June.

Movsesian, The Devout and the Nones, First Things, April.

DeGirolami, Jurisprudence as an Expression of Character, Liberty Fund, January.

Activities

Conversation with Hon. Kyle Duncan (5th Circuit) and Hon. Richard Sullivan (2d Circuit) on church-state issues at the Supreme Court.

Legal Spirits (podcast series concerning law and religion).

In spring 2019, DeGirolami was a fellow in the James Madison Program in Princeton University’s Department of Politics.

DeGirolami, Panel on Keith Whittington’s “Repugnant Laws,” James Madison Program, Princeton University, November.

Movsesian, “Church-State Relations in a Time of Scandal,” Morningside Institute, September.

Movsesian, Constitution Day Lecture, The King’s College, September.

DeGirolami, “The Supreme Court’s New Traditionalism,” Skidmore College, September.

DeGirolami, “The Constitution, the Courts, and Conservatism,” Hertog Foundation, July.

The Center for Law and Religion colonizes the Harvard Journal of Law and Public Policy! June.

Movsesian, “Religion and the Administrative State,” Center for the Study of the Administrative State, George Mason University, March.

DeGirolami, “Free Exercise of Religion and Free Speech,” AALS Law and Religion Conference, January.

Highlights from The King’s College

The King’s College has posted a video of excerpts from my Constitution Day Address last month, on how cultural trends, including the rise of the Nones, will likely affect the legal debate on religious accommodations. Here’s the link: