To all who celebrate today, a very Happy Easter. Christ is Risen.
The Center for Law and Religion is delighted to announce the lineup for the sixth biennial Colloquium in Law and Religion, scheduled for Fall 2022. The Colloquium brings outside scholars and jurists to St. John’s to teach a seminar for selected students. Speakers present drafts on law and religion; students are graded on the basis of response papers and class participation.
This year’s Colloquium speakers are Judge Richard J. Sullivan of the U.S. Court of Appeals for the Second Circuit and Professors J. Joel Alicea (Catholic University School of Law), Nathan Chapman (University of Georgia School of Law), Nicole Stelle Garnett & Fr. Pat Reidy (Notre Dame Law School and Yale Law School student), Anna Su (University of Toronto Faculty of Law), and Nelson Tebbe (Cornell Law School).
To all who celebrate tomorrow, Merry Christmas!
I have a new paper, Establishment’s Political Priority to Free Exercise, forthcoming in the Notre Dame Law Review. Here is the abstract:
American law is beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.
This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls “the establishment”—has now, and has always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment’s civil religion—the set of transcendent, church-state propositions that supports the political regime’s legitimacy and authority—has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption’s contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty first. Though today’s most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.
[Editors: The following is a post from St. John’s 3L law student, Raul J. Muniz.]
On July 11, thousands of Cubans in more than 40 cities across the country took to the streets to protest the Cuban government. The island has not seen public demonstrations on this scale in over 62 years since Fidel Castro’s revolutionary forces took power in 1959. The Cuban people have lived under a single-party authoritarian regime where political dissent is punished and repressed. The protests demanding liberty were exacerbated by increasing COVID-19 cases and a failing economy.
Protestors were quickly met with large-scale arrests by security forces and a complete shutdown of internet access to limit communication and prevent videos of the protests from circulating across social media. According to the Foundation for Pan American Democracy (FDP) Center for Incident Reports, at least 750 Cubans have disappeared or have been detained.
The arrests and detentions have included some prominent religious figures. Among those detained were Pastor Yeremi Blanco and Pastor Yarian Sierra of the Berean Baptist Mission, Reverend Yusniel Pérez Montejo of the Eastern Baptist Convention, and Father Jose Alvarez Devesa of the Roman Catholic Church. Cuban authorities also detained Berta Soler, leader of the Ladies in White, an opposition movement founded by wives and relatives of jailed dissidents who silently walk through the streets dressed in white after attending Sunday Mass.
Religion and Religious Freedom in Cuba
Roman Catholicism is the dominant religion on the island, with 60% of Cubans identifying as members of the Roman Catholic Church.
Professor Alejandro Anreus explains, in Catholic Cuba, that by the late 1950s, Catholic leaders were openly challenging President Fulgencio Batista, Fidel Castro’s predecessor, to return to an elected and constitutional democracy. When Castro’s revolutionary forces successfully overthrew Batista’s military dictatorship, Catholic leaders and laity sensed new possibilities in Castro’s promises of an ethically managed government, agrarian reform and land redistribution, literacy campaigns, and other social-justice improvements.
However, after Castro came to power, the Cuban government banned public religious events, expelled Roman Catholic priests, and nationalized Catholic schools. Notably, the Auxiliary Bishop of Havana, Boza Masvidal, was jailed and deported after condemning Castro’s self-declared Marxist-Leninist government. Father Miguel A. Loredo, a Franciscan friar and an outspoken critic of the revolution’s denial of religious freedom, would spend ten years in prison and was forced to leave Cuba. By 1962, 70 percent of priests and 90 percent of nuns had left Cuba.
Tensions between the Church and Cuban government have eased somewhat in more recent years. Pope John Paul II, Pope Benedict XVI, and Pope Francis all have visited the island, and the first Catholic Church since the 1959 revolution was inaugurated in 2019. However, religious expression is limited by state surveillance and control; religious leaders that speak out against the government are subject to government discrimination and harassment.
Role of the Roman Catholic Church
In recent years, the Catholic Church has served as a mediator in negotiating the release of political prisoners and brokering the normalization of relations between the United States and Cuba. Critics of the Cuban government have asserted that the Church has not done enough to confront the government on human rights abuses.
After the protests on July 11, the Cuban Conference of Catholic Religious set up a hotline to advise the families of detainees about pursuing claims of habeas corpus, locating detainees, and providing spiritual and psychological guidance. Cuban bishops issued a statement on July 12 acknowledging “that the people have the right to express their needs, desires and hopes and, in turn, to express publicly how some of the measures that have been taken are seriously affecting them,” and encouraged citizens and the government to seek dialogue. Pope Francis, in his first Angelus Address after being hospitalized for two weeks, extended his support for the Cuban people and prayed for a “society that is more just and more fraternal through peace, dialogue and solidarity.”
Although the protests on July 11 perhaps suggest that Catholic leaders in Cuba are willing to take a stronger stance against the government, it remains unclear what role the Catholic Church will play as Cubans on the island, and Cuban exiles in the United States, demand further and more far-reaching changes.
For all who celebrate today, a very Happy Easter. Qom mašiḥo! Šariro’ith qom!
Even in regular times, religion, law, and state coexist in tense and complex relations. Crises exacerbate the tensions and conflicts, as we saw recently, during the global COVID-19 pandemic. Various religious groups that usually comply with state law disregarded safety rules to conduct religious rituals, endangering adherents and others. Religions and states found themselves in multiple, continuous conflictual situations.
The Journal of Law, Religion and State recently published a special issue tackling such topics on law, religion and COVID-19. All articles are open access till the end of 2021 and can be found here.
At the Liberty Fund site this morning, I have an essay on the scarcity of religious belief among American law professors. I explore the reasons for the scarcity and the effect the scarcity has on American legal education. And I reflect a bit on my own career choices. Here’s an excerpt:
This leads to the third question: what, if anything, should be done? Law schools could do more to seek out and promote candidates who bring religious perspectives to their work and teaching—something that would be entirely consistent with the laudable goal of increasing the representation of ethnic and racial minorities on law school faculties. I doubt such an effort will be forthcoming, though. For the reasons I’ve explained, most law professors see religious perspectives as irrelevant to their work and don’t perceive their absence as a serious problem. This is true even at law schools with religious affiliations—again, with some notable exceptions. Besides, increasing ideological diversity and inclusiveness is not a priority for most law faculties.
This is a pity, because religious perspectives on law would offer much to our students. It is not simply a matter of knowing the historical foundations of our laws or appreciating the critiques of the past. Religious perspectives would offer students insights into current legal controversies. For example, in America today, we are debating whether the state may constitutionally order churches to close during an epidemic. In legal terms, the cases often turn on a balancing test, in which courts weigh the government’s interest in curtailing an epidemic against the burden that closure imposes on the practice of religion. To understand the cases, students need to hear, not only the secular perspectives of most law professors, but the perspectives of people inside faith communities, who can explain why believers find orders to close such an imposition. The comparative absence of religious law professors makes it less likely students will hear both sides.
You can read the whole essay here.
Here are some important law-and-religion news stories from around the web:
- The Third Circuit held that a Pennsylvania prisoner’s free exercise rights were not violated when he was deprived of chaplain visits for ten days, since the prisoner failed to file a request slip in accordance with procedures and did not explain how the lack of visits adversely impacted his practice of religion.
- The U.S. District Court for the District of Maryland issued a preliminary injunction blocking President Trump’s executive order permitting state and local governments to turn away refugees; the suit was filed by the religious non-profit organizations that claim the order violates the Refugee Act of 1980.
- The Eleventh Circuit affirmed the dismissal of a juror in a federal fraud case who stated the Holy Spirit told him the defendant was not guilty; the opinion noted that the juror based his decision on a “perceived divine intervention.”
- Tennessee Governor Bill Lee indicated he would sign a bill to protect adoption agencies that refuse to place a child for foster care or adoption in a home that is in “violation of the agency’s religious convictions or policies.”
- Pope Francis named Francesca Di Giovanni as Secretariat of State, making her the first woman to hold a managerial position in the Vatican.
- The U.S. District Court for the Southern District of Texas held that an attorney has standing to challenge the practice of Texas judge who invites chaplains to hold a prayer service in the courtroom before calling his docket for the day.
- Air Force General John “Jay” Raymond was sworn in by Vice President Mike Pence using a Bible, drawing criticism from the Military Religious Freedom Foundation, which called it a “repulsive display. . .of Christian supremacy.”
- The U.K. Minister of Defense issued an apology to service members whose sexual orientation was outed by military chaplains; the chaplains violated the seal of confession and informed military superiors that military members were lesbian, gay, or bisexual.
Here are some important law-and-religion news stories from around the web:
- The Montana Supreme Court unanimously reversed a $35 million judgment against the Jehovah’s Witnesses, holding that the group’s authorities are not mandatory reporters of child abuse under Montana law.
- A Pennsylvania state court allowed a public nuisance suit alleging that the Roman Catholic Diocese of Pittsburgh failed to report allegations of child abuse to move forward.
- The United States District Court for the Northern District of Indiana denied a motion for summary judgment on a First Amendment retaliation claim brought by an associate professor at Indiana University against the school’s hiring committee, which asserted she was not hired full-time because of her pro-life views.
- The United States District Court for the Eastern District of Virginia declined to dismiss a Title VII claim by a former Director in the United Methodist Church, which maintained she was fired after complaining that she was given more work than her Caucasian co-workers.
- The International Consortium of Investigative Journalists reported that as many as one million Muslims are currently imprisoned in “re-education camps” in China.
- The United States Court of Appeals for the Fifth Circuit affirmed the dismissal of a suit by a Texas firefighter who lost his job in 2016 after refusing to be vaccinated for religious reasons.
- The Brazil Supreme Court overturned a lower court ruling and held that Netflix can continue streaming a comedy depicting Jesus as a homosexual.