“Establishment’s Political Priority to Free Exercise”

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.

Raul J. Muniz, “Protests in Cuba and the Detention of Religious Leaders”

[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.

Happy Easter!

Syriac Lectionary (13th Century)

For all who celebrate today, a very Happy Easter. Qom mašiḥo! Šariro’ith qom!

Special Issue of the Journal of Law, Religion and State

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.

On Religion in the Legal Academy

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.

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Two New Religious Liberty Projects

Our friends at the J. Reuben Clark Law Society have asked us to pass along information about two new projects that may interest the readers of this blog, a new database on workpace religious accommodations and a fellowship for law students. More information at the links.

A New Book on Peguy

I first read some of Charles Péguy’s work in college, in a course taught by the great Rimbaud translator and Proust scholar, Wallace Fowlie. The course considered the thought of several important Catholic intellectuals of the late 19th and early 20th century pre- and inter-War period, focusing on French writers including Belloc, Bernanos, Maurras, and Mauriac (with a little Chesterton thrown in too for some national variety). What we read of Péguy’s writing at the time struck me as having a lot to say about law and politics–particularly on the difference between “mystique” and “politique” and the need for the unifying political leader (like a President, for example) to set himself apart from the ordinary machinations of party politics–and so it’s good to see this new volume to devoted to him. The book is Carnal Spirit: The Revolutions of Charles Péguy (University of Pennsylvania Press), by Matthew W. Maguire.

“It is rare for a thinker of Charles Péguy’s considerable stature and influence to be so neglected in Anglophone scholarship. The neglect may be in part because so much about Péguy is contestable and paradoxical. He strongly opposed the modern historicist drive to reduce writers to their times, yet he was very much a product of philosophical currents swirling through French intellectual life at the turn of the twentieth century. He was a passionate Dreyfusard who converted to Catholicism but was a consistent anticlerical. He was a socialist and an anti-Marxist, and at once a poet, journalist, and philosopher.

Péguy (1873-1914) rose from a modest childhood in provincial France to a position of remarkable prominence in European intellectual life. Before his death in battle in World War I, he founded his own journal in order to publish what he thought most honestly, and urgently, needed to be said about politics, history, philosophy, literature, art, and religion. His writing and life were animated by such questions as: Is it possible to affirm universal human rights and individual freedom and find meaning in a national identity? How should different philosophies and religions relate to one another? What does it mean to be modern?

A voice like Péguy’s, according to Matthew Maguire, reveals the power of the individual to work creatively with the diverse possibilities of a given historical moment. Carnal Spiritexpertly delineates the historical origins of Péguy’s thinking, its unique trajectory, and its unusual position in his own time, and shows the ways in which Péguy anticipated the divisions that continue to trouble us.”

A New Collection of Sources on Early Modern Europe

9780815373537To close out the week’s books, here is a new collection from Routledge on early modern Europe, A Sourcebook of  Early Modern European History, edited by Ute Lotz-Heumann (University of Arizona). Many foundational concepts in American church-state relations date from this period, and the book addresses a number of subjects that law and religion scholars will find interesting. Here’s the publisher’s description:

A Sourcebook of Early Modern European History not only provides instructors with primary sources of a manageable length and translated into English, it also offers students a concise explanation of their context and meaning.

By covering different areas of early modern life through the lens of contemporaries’ experiences, this book serves as an introduction to the early modern European world in a way that a narrative history of the period cannot. It is divided into six subject areas, each comprising between twelve and fourteen explicated sources: I. The fabric of communities: Social interaction and social control; II. Social spaces: Experiencing and negotiating encounters; III. Propriety, legitimacy, fidelity: Gender, marriage, and the family; IV. Expressions of faith: Official and popular religion; V. Realms intertwined: Religion and politics; and, VI. Defining the religious other: Identities and conflicts.

Spanning the period from c. 1450 to c. 1750 and including primary sources from across early modern Europe, from Spain to Transylvania, Italy to Iceland, and the European colonies, this book provides an excellent sense of the diversity and complexity of human experience during this time whilst drawing attention to key themes and events of the period. It is ideal for students of early modern history, and of early modern Europe in particular.