Thanks to Rusty Reno and First Things Magazine for hosting a dinner seminar last night on my new paper, Of Human Dignities. (That’s a picture of me and Rusty at the event, listening in rapt attention to one of the many insightful interventions). I greatly enjoyed the discussion and am grateful to all the participants for their careful readings of the paper. For those who would like to download a copy of the paper, which appears in the current edition of the Notre Dame Law Review, please click here.
In April, Oxford University Press released the fourth edition of Religion and the American Constitutional Experiment, by John Witte, Jr. (Emory) and Joel Nichols (St. Thomas-Minnesota). The publisher’s description follows:
This accessible introduction tells the American story of religious liberty from its colonial beginnings to the latest Supreme Court cases. The authors provide extensive analysis of the formation of the First Amendment religion clauses and the plausible original intent or understanding of the founders. They describe the enduring principles of American religious freedom–liberty of conscience, free exercise of religion, religious equality, religious pluralism, separation of church and state, and no establishment of religion–as those principles were developed by the founders and applied by the Supreme Court. Successive chapters analyze the two hundred plus Supreme Court Continue reading
In August, Yale University Press will release George Whitefield: America’s Spiritual Founding Father. by Thomas Kidd (Baylor University). The publisher’s description follows:
In the years prior to the American Revolution, George Whitefield was the most famous man in the colonies. Thomas Kidd’s fascinating new biography explores the extraordinary career of the most influential figure in the first generation of Anglo-American evangelical Christianity, examining his sometimes troubling stands on the pressing issues of the day, both secular and spiritual, and his relationships with such famous contemporaries as Benjamin Franklin, Jonathan Edwards, and John Wesley.
Based on the author’s comprehensive studies of Whitefield’s original sermons, journals, and letters, this excellent history chronicles the phenomenal rise of the trailblazer of the Great Awakening. Whitefield’s leadership Continue reading
This month, Brazos releases Public Faith in Action: How to Think Carefully, Engage Wisely, and Vote with Integrity, by Miroslav Volf (Yale Divinity School) and Ryan McAnnally-Linz (Yale Divinity School). The publisher’s description follows:
Christian citizens have a responsibility to make political and ethical judgments in light of their faith and to participate in the public lives of their communities–from their local neighborhoods to the national scene. But even in countries where Christians are free to engage in public life, it can be difficult to discern who to vote for, which policies to support, and how to respond to the social and cultural trends of our time.
In this nonpartisan handbook, world-renowned theologian Miroslav Volf and Ryan McAnnally-Linz explain that Christians need to develop habits of wise reflection if they are to engage faithfully with their political communities. To do so, they need to identify the key commitments of their faith that connect with contemporary public issues, Continue reading
Marc has posted a rundown of yesterday’s decision in Zubik v. Burwell, the ACA case. I’d like to add just a few quick observations.
Some commentators, including the New York Times, have decried the result as the inevitable consequence of having an eight-member Court, which prevents the formation of five-person majorities in close cases. If only the Senate had confirmed Merrick Garland, we wouldn’t be in fixes like this. But it’s worth noting that the Court’s opinion yesterday was unanimous. All eight Justices joined it in full. If Merrick Garland had been on the Court, it likely would have been 9-0. In fact, an unsigned, per curiam opinion like yesterday’s traditionally signals that the Court does not see a decision as particularly significant or controversial.
Now, it’s true that Justice Sotomayor, joined by Justice Ginsburg, wrote a separate concurrence. But, in Supreme Court practice, a concurrence signals that the author agrees with the Court’s reasoning and wishes only to offer further support or highlight certain aspects of the case. And that’s what Justice Sotomayor did here. She went out of her way to highlight the fact that the Court was not ruling on the merits of the case. I’m not sure that was entirely necessary; the Court itself expressly said it was not ruling on the merits. But, anyway, her writing separately doesn’t reflect disagreement with the Court’s reasoning.
So the Court does not seem to have been divided at all. Now, it’s possible, as some speculate, that the Court did a quick vote after oral argument, saw that there would be no clear majority on the merits, and reached for a compromise that would preserve the Court’s credibility while allowing further consideration down the road, when the Court is back to nine members. But that’s more than we can know right now, and, at least to me, there seems another, more likely explanation for the Court’s unanimity. The Court determined that the whole dispute may well be unnecessary.
After oral argument and supplementary briefing in March, it became clear to the Court that there might be a way out of the conflict the lower courts had missed. It might be possible for employees to receive coverage for contraceptives without requiring employers to file the so-called “opt out form” — the form to which the petitioners had objected on religious grounds. As the Court explained:
Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”
In other words, the parties might be able to reach a settlement that would satisfy everyone. The Supreme Court is not the place to hammer out such a settlement, though, so the Court remanded the dispute to the lower courts, which, it said, were in a position to “allow the parties sufficient time to resolve any outstanding issues between them.” (Hint, hint). In that event, the dispute would be moot–and it is hornbook law that courts, including the Supreme Court, do not decide moot issues. As one commentator observed, what the Court is saying is, “We don’t need to decide this case right now. The parties should be able to work it out for themselves.”
Although the Court did not rule on the merits, it’s hard not to see this as a loss for the Obama Administration. A determination that the dispute may not have been necessary at all is, implicitly, a judgment on the Administration’s strategy in these cases. The Administration has taken a very hard line on the Contraception Mandate, harder than it needed to in order to achieve its stated goal of providing cost-free contraceptive coverage for women. Two terms ago, in Hobby Lobby, the Court ruled that the Administration could reach that goal without requiring for-profit corporations with religious objections to cover contraceptives in their health plans. Now, the Court has suggested the Administration can reach that goal without requiring religious non-profits like the Little Sisters to violate their religious convictions. So why did the Administration take such a hard line? Why didn’t it accommodate the concerns of people with religious objections to the mandate–an extremely small group, it must be conceded–especially as accommodation wouldn’t have changed the ultimate outcome? It’s almost as though the Administration had goals other than women’s health in mind.
The Center for Law and Religion’s Year-End Message for 2015-2016 is now available on our website. Among the highlights:
- A major grant from the Lynde and Harry Bradley Foundation to support the start of of the Tradition Project, a new research initiative that will explore the value of tradition for contemporary citizens and the relationship of tradition and change in today’s world
- The third biennial Colloquium in Law and Religion, featuring Supreme Court Justice Samuel Alito, as well as Professors Robert George (Princeton), Brett Scharffs (BYU), Mark Tushnet (Harvard), and Robin Wilson (Illinois).
- A new, annual Conversation on current law and religion cases at the Supreme Court, timed to coincide with the start of the new Court term each October
For those who are interested, a draft version of my article, “Of Human Dignities,” is now available on SSRN. The article will appear in a forthcoming symposium issue of the Notre Dame Law Review. Here’s the abstract:
This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae, the Catholic Church’s declaration on religious freedom, explores the conception of human dignity in international human rights law. I argue that, notwithstanding a surface consensus, no generally accepted conception of human dignity exists in contemporary human rights law. Radically different understandings compete against one another and prevent agreement on crucial issues. For example, the Catholic Church and other religious bodies favor objective understandings that tie dignity to external factors beyond personal choice. By contrast, many secular human rights advocates favor subjective definitions that ground dignity in individual will. These conceptions clash, most notably in contemporary debates on traditional values resolutions and same-sex marriage. Similarly, individualist conceptions of dignity, familiar to most of us in the West, compete with corporate conceptions that emphasize the dignity of traditional religions — a clash that plays out in the context of the proselytism and the right to convert. Rather than try to forge agreement on a universal definition of dignity, I argue, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it.
You can download the paper (more than once!) here.
The U.S. Commission on International Religious Freedom (USCIRF) has released its annual report, finding that that religious freedom is under “serious and sustained assault” across the globe. The report, which covers the period from February 1, 2015-February 29, 2016, highlights religious freedom violations in more than 30 countries, including China, Sudan, North Korea, Nigeria, Pakistan, Iraq and Syria. It cites abuses by both state and non-state entities.
For readers who are interested, the H-Diplo Roundtable Review has published my essay on Harvard Law Professor Samuel Moyn’s provocative recent monograph, Christian Human Rights (2015), as part of a roundtable discussion of the book. Along with Moyn, the other participants include Martin Conway (Balliol College Oxford) and David A. Hollinger (Berkeley).
Here’s snippet of my essay:
Similarly, Moyn’s reflections about whether contemporary human rights can improve upon Christianity as a moral movement, with which he ends the book, are misguided. Christianity offers human rights important lessons, he says. Institutionally, the religion has been a great success. But spiritually it has been a failure: it has not improved the souls of people who call themselves Christians. As a result of this failure, he says, Christianity has been forced to retreat into “opacity and mysticism” (180). Human rights must do better. It must, according to Moyn, actually change things in this world, or else it will be just another futile faith.
These remarks are rather dismissive of Christianity. More important, they reflect a fundamental misunderstanding – a category error. Christianity is not a moral movement in the way human rights is. It does not promise people a more perfect world; it offers them salvation. That has been the essence of its appeal across millennia and its appeal today – no longer in Europe, perhaps, but across the global South, where Christianity is experiencing explosive growth. Human rights, which is a political program, can never expect to have Christianity’s place in people’s lives. I am reminded of Talleyrand’s famous answer to an earnest revolutionary who asked him for advice on how to start a new, enlightened religion to replace Christianity: ‘I recommend that you be crucified and rise again on the third day.’
And Moyn’s response:
From a Christian perspective, Mark Movsesian goes very far in welcoming this project, and not at all selfservingly — since he is ready to agree that many Christians embraced human rights more recently than some would today like to believe. I would only comment that he may have misread my epilogue, which is not at all intended to be critical of Christianity as a faith, though I recognize that temptation as an outsider. Rather, my point was that the deepest Christians have always known that Christianity itself demands constant public reflection on its own failure — a practice in which even the best human rights activists may have learned to engage far too slowly. Further, it is out of respect for Christianity as ultimately a faith movement – a faith, as Movsesian points out, based on belief in Jesus Christ’s resurrection to begin with – that I distinguish human rights as a movement that has to be held to different standards. Unlike Christians, that is, these believers have to face failures and limitations without relying on the expectation that human rights work in mysterious ways. Yet these differences hardly imply that Christianity and human rights are entirely disanalogous either. Whatever else Christianity was and is, it is a moral vision, and – as both Barnett and Hollinger agree — the methods of its partisans in inculcating that vision seem to me profoundly relevant to any other moral agenda. Beyond whatever strictly historical contributions to rethinking the 1930 and 1940s birth of human rights it makes, my book, I hope, reminds secular progressives that Christianity remains the social movement to beat.
You can read the entire roundtable here.
Here is a little good news about Mideast Christians, for a change. Last week, the three principal Christian communities that maintain the Church of the Holy Sepulcher in Jerusalem announced that they have reached agreement on repairs to the Edicule, a nineteenth-century structure that encompasses the Tomb of Christ. At a joint news conference, the leaders of the Greek Orthodox, Armenian Apostolic, and Roman Catholic communities announced that work on the structure, built a little more than 200 years ago, will start right after Orthodox Easter in May and last several months. The three communities will share the costs–about three million euros–and each appoint architects to help with the project. Pilgrims will continue to have access to the site while renovations are underway.
Readers who don’t know the history might fail to appreciate what an accomplishment this is. The three communities share the church, along with some smaller Christian communions, according to the terms of the Status Quo, a compilation of customs that dates to Ottoman times. The Status Quo governs the relationship among the communities in minute detail: which can use which altars at which times, how many lamps each community is allowed, and so on. Relations are often fractious. Because, under the Status Quo, maintaining or paying for repairs of a structure asserts ownership, each community has an incentive to prevent others from undertaking renovation projects. Needed repairs are often delayed until the situation becomes truly dire—as is the case with the Edicule, which has been held together by scaffolding since the 1940s.As Israeli scholar Raymond Cohen explains in a masterful history, Saving the Holy Sepulchre, it took the communities decades to agree on a plan to fix the church’s dome, and they reached agreement only when the dome was about to fall down. That project, the last major renovation of the church, was completed about 20 years ago.
Well, relations have improved. The new situation reflects in part what Pope Francis has called the “ecumenism of blood.” The persecution of Mideast Christians does not respect confessional boundaries. When ISIS is slaughtering your people, disputes about lamps do not seem so vital. The Facebook page of the Armenian Patriarchate of Jerusalem, which represents the Armenian Apostolic Church, has pictures of the three happy Christian leaders at the news conference (above). Peace, it’s wonderful. Let’s hope the good feelings last for the upcoming Holy Fire ceremony at Easter, which often occasions conflict. Fistfights are not unknown.