With Sullivan and Kovner, On the New Court Term

A programming note: tomorrow evening I’ll moderate a panel at St. John’s on the new Court term. The panel, hosted by the law school’s chapter of the Federalist Society, will feature Judge Richard Sullivan of the Second Circuit (and the Center’s Board of Advisers) and Judge Rachel Kovner of the Eastern District. Among the cases we’ll discuss are Tanzin v. Tamvir and Fulton v. City of Philadelphia, two law and religion cases Marc and I have covered in our Legal Spirits podcasts. Fulton, in particular, could be a blockbuster and I’m eager to hear with Judges Sullivan and Kovner have to say about it. The event is open to all St. John’s Law students; please contact the Fed Soc chapter for info.

“Law, Religion, and Coronavirus in the United States”: Adelaide Madera

On October 2, 2020, the Center co-hosted a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” Center Co-Director Mark Movsesian moderated one of the webinar’s panels, “Religious Organizations.” The following post, by Adelaide Madera, Professor at Università degli Studi di Messina, was one of the panel presentations. For other Webinar presentations, please check out the websites of BYU’sInternational Center for Law & Religion Studies and Emory’s Center for the Study of Law and Religion.

The Impact of Coronavirus on Public Funding of Religious Organizations

By Adelaide Madera

Since Everson v. Board of Education, access to public  funding for religious organizations has been a controversial issue and fiercely litigated. During the pandemic crisis lockdown, the enactment of the CARE Act that established the Paycheck Protection Program, raised new challenges for religious charities.

The PPP appeared attractive to many organizations and businesses, both religious and secular, which  needed to maintain their employees on their payroll. However, many concerns arose as to whether religious nonprofits were eligible for government funding, whether accepting PPP loans implied that religious organizations were federal contractors, and to what extent access to public funding could affect their religious identity. On April 3, the SBA issued guidelines to clarify some key points. First, receiving the loan has no implications on church autonomy, religious identity, internal governance, or on the exercise of rights guaranteed by federal statutes (RFRA, section 702 of Title VII, First Amendment). Accepting a PPP loan “constitutes Federal financial assistance” and implies “certain nondiscrimination obligations,” even though they “are not permanent.” The only limitation applies to all beneficiaries: 75% of the loan must be used to cover payroll costs. The SBA’s frequently asked questions underlined that the SBA’s nondiscrimination rules, as Title VII provisions, include an exemption allowing religious organizations to employ staff sharing their religious beliefs “to perform work connected with [the organization’s] religious activities.” The crucial question is whether this exemption allows religious organizations to select employees who also share their standards of behavior. Certain academics incline toward a narrow reading of this provision,[1] and a textualist reading of the expression “because of sex” of Title VII resulted in the Supreme Court’s inclusion of gender identity and sexual orientation under  the protection offered by Title VII.

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“Law, Religion, and Coronavirus in the United States”: Christopher Lund

On October 2, 2020, the Center co-hosted a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” Center Co-Director Mark Movsesian moderated one of the webinar’s panels, “Religious Organizations.” The following post, by Christopher Lund, Professor of Law at Wayne State University Law School, was one of the panel presentations. For other Webinar presentations, please check out the websites of BYU’sInternational Center for Law & Religion Studies and Emory’s Center for the Study of Law and Religion.

Quarantines, Religious Groups, and Some Questions About Equality

By Christopher Lund

When the government imposes quarantine orders for public safety, shutting some places down and leaving other places open, how should it treat religious organizations and religious services?  A natural answer is that religious organizations should be treated equally.  And that makes sense.  Equality is a solid moral principle, with wide-ranging appeal and deep roots in history and in law.

But equality is not self-executing.  And the deeper one goes into these quarantine orders, the more that becomes apparent.  We are trying to treat religion equally, but we don’t quite know how.  I’m planning a longer piece that will go into more details.  But for this blog post, let me simply try to demonstrate two things to you.  First, quarantine schemes require judgments about the value of religious exercise—which is uncomfortable in a system like ours, which tries to keep the government out of such questions.  And second, by insisting that all gatherings of all religious organizations be treated the same way, quarantine schemes become blind to genuine religious differences.  We are deciding how much to restrict religious organizations in general by imagining what happens in a religious service, but our imagined religious service ends up looking a lot like a Sunday morning Christian worship service. 

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“Law, Religion, and Coronavirus in the United States”: Mary Anne Case

On October 2, 2020, the Center co-hosted a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” Center Co-Director Mark Movsesian moderated one of the webinar’s panels, “Religious Organizations.” The following post, by Mary Ann Case, the Arnold I. Shure Professor of Law at University of Chicago Law School, was one of the panel presentations. For other Webinar presentations, please check out the websites of BYU’s International Center for Law & Religion Studies and Emory’s Center for the Study of Law and Religion.

Covid and Egalitarian Catholic Women’s Movements

By Mary Anne Case

In his March 27, 2020 extraordinary message Urbi et Orbi, Pope Francis insisted that the time of coronavirus was “not the time of [God’s] judgement, but of our judgement: a time to choose what matters and what passes away, a time to separate what is necessary from what is not.” The injunction “to seize this time of trial as a time of choosing” offered by the Pope came at what may have been a providential time for egalitarian Catholic women’s movements.  As the pandemic closed church buildings worldwide, and both the women and the priests went home and on line, the effect was to energize and unite the former while isolating the latter.  As priests celebrated mass alone, women organized worldwide mixed sex, women-centered participatory Zoom liturgies, and worshipped in house churches and in communities of nuns without benefit of clergy.   The choices made during the pandemic may have lasting consequences for both the clergy, who may find it increasingly difficult to overcome their isolation and reconnect with their flock, and the women and their supporters, who seem increasingly disinclined to go back rather than forward.

Two video images capture for me the stark choice offered to Catholic feminists in this time of choosing.  The first is of Pope Francis, alone in the middle of a vast, fenced-off, rain-drenched St. Peter’s Square delivering the afore-mentioned Urbi et Orbi blessing to the city of Rome and to the world.  He is flanked by a holy icon of the Virgin and a crucifix, and accompanied only by a handful of male clergy. The singing that accompanies him consists exclusively of male voices, reminding the listener of longstanding bans on women’s singing in church.  Visible in the distance, pressed up against the gates, are a small number of the faithful (or merely curious) sheltering under umbrellas.  This brought back the memory of other occasions when women were literally as well as figuratively fenced out.  For example, in 2018, during the Synod on Young People, the Faith and Vocational Discernment, several dozen women and men protesting the failure to grant voting rights to any woman at the synod stood outside the gates that led to the synod hall, chanting  “Knock, knock.” “Who’s there?” “More than half the church.”  Their protests attracted the direct attention of more police than synod fathers.

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Traditionalist Originalism

Here is the latest over at the Liberty Fund in my small efforts to play with what a fusionist interpretive approach to constitutional interpretation–integrating originalism and what I have called traditionalism–might look like and require. The occasion is a reply to some fine essays by Professors Randy Barnett, Jesse Merriam, and Ilan Wurman, who were responding to this piece on stare decisis.

I find these more extended exchanges useful. You get a chance to really talk to people a bit more, so to speak. Here’s a little bit:

Originalists moved by Professor Barnett’s imperative [to align doctrine with original meaning] would be well-advised to attend to the difference between, on the one hand, an ancient and enduring cluster of precedents reflecting practices extending back to the founding (and even before it) and, on the other, a comparatively recent, one-off, “unmoored” (as Justice Thomas put it) decision that runs counter to such enduring practices. This distinction is important for at least two reasons, one theoretical and the other practical.

First, at least in cases where meaning is uncertain, old and enduring precedential lines carry greater epistemic weight about those meanings than do recent and isolated doctrinal innovations. Precedents proximate in time to the founding and repeatedly entrenched thereafter for centuries in subsequent doctrine and practice are more powerful evidence of permissible, even if not mandated, textual meanings, than precedents that do not share these qualities. True, they are not conclusive evidence. An ancient and enduring line of doctrine may have gotten it wrong, and wrong repeatedly, from the start. But for the many constitutional provisions where meaning is uncertain, and for situations in which there may be several interpretations that are not “demonstrably erroneous,” originalists concerned about epistemic warrant ought to grant such precedential lines a presumption of veracity.

Consider the bizarre and hubristic alternative: a world where early judicial interpretations, and the lasting and concentrated lines of precedent generated by them, are given no respect at all, or are even presumed to be wrong, and it is only the latest-arriving “knowledgeable scholars,” so much more distant in time and legal culture, who can see clearly and are owed epistemic deference. Judges evaluating practices close in time to the founding have access and insight that scholars who research original meaning today should acknowledge and respect. They are much more likely than we are to share in the political and cultural ethos of their own time. And where an early understanding has endured and been repeatedly reaffirmed for generations, thereby increasing its law-like properties, the respect we owe it likewise should increase.

Second, the justices whom originalists admire most do tend to invest ancient and enduring precedential lines with qualitatively different stare decisis force than recent, novel, and unmoored precedents. As I indicated in my first essay, this is something that judges inclined toward originalism have appreciated better than their scholar counterparts. I was therefore puzzled by Professor Barnett’s claim that “some justices” today may be eager to overrule D.C. v. Heller and Citizens United v. FEC, just as other justices of the Warren and Burger Court eras swept away ancient and longstanding precedents that obstructed their progressive political aims. That may be true, but I would not have thought that originalists would take these justices to be their models, let alone to vindicate Professor Barnett’s argument that Supreme Court justices “must be free” to vote as they like whenever they like, stare decisis notwithstanding.

Against Professor Barnett’s claim that Supreme Court justices “never have” treated stare decisis as especially powerful in the case of old and enduring precedents, I point back to my initial essay, where I described the considerable “buy-in” that already exists from the justices whom originalists admire and would like to win over—including Justice Thomas, Justice Gorsuch, and Justice Alito in their respective opinions in Gamble, Mesa, and Ramos. If the Chief Justice can be shown the error of his “insidious” conception of stare decisis in June Medical, as Professor Wurman puts it, then perhaps he, too, might be persuaded to buy in.

In highlighting age, deep roots in common practice, and enduring continuity—that is, in emphasizing the jurisprudential traditionalism of constitutional law—these justices are telling originalist scholars something important about the virtue of stability in constitutional law, and about its nature. As Judge Amy Coney Barrett has indicated, Justice Scalia likewise long defended the “stare decisis” of American political and cultural traditions against the doctrinal innovations of judges (and scholars) entirely disconnected from, and sometimes even disdainful of, those traditions. “In an important sense,” Judge Barrett argues, “originalism can be understood as a quintessentially precedent-based theory, albeit one that does not look primarily to judicial decisions as its guide.” Justice Scalia is no longer on the Court, of course. But others may come who have been influenced by his legacy. Originalists have reasons to listen to what these judges are telling them.

Professor Barnett is right, then, that integrating originalism and stare decisis will require accepting the “imperative” of gradual doctrinal alignment in accordance with original meaning. That will be stare decisis’ concession. But integration will require a concession from originalism, too—and something more than what Professor Barnett is offering at the moment. Originalists will need to acknowledge the traditionalism of constitutional law and that precedential age, endurance, and connection to common practice matter in constitutional law. They matter both for epistemic, interpretive reasons that ought to be of interest to originalists and for the stability that ought to be recognized by originalists and nonoriginalists alike as a legal virtue.

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Upcoming Webinar on Law, Religion, and Covid

A programming note: next Friday, October 2, at 11:00 am, the Center will co-host a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” The webinar will feature commentary from law professors, law students, and lawyers on the implications of the coronavirus pandemic, as well as economic and racial justice concerns raised over the past six months. Co-sponsors include the International Center for Law and Religion Studies at Brigham Young University Law School; the Center for the Study of Law and Religion at Emory University Law School; the Program on Church, State & Society at Notre Dame Law School; and the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University’s Charles Widger School of Law. The roster of speakers and further details are available here. Hope you can join us for what will be an excellent program!

Merriam Responds on Originalism and Stare Decisis

The final response to my essay on integrating originalism and stare decisis, by Professor Jesse Merriam (Patrick Henry College), is up. I will have a reply to all three of my respondents in a few days. A bit from the end of Professor Merriam’s piece:

Any effort to restore the American legal tradition must engage the fact that our constitutional order has been revolutionized through a vast array of “individual liberty” decisions. As Bruce Frohnen describes this shift, the Supreme Court’s Fourteenth Amendment jurisprudence has transformed American constitutional law from a mediating order (i.e., a constitutional order that “mediates among more primary social groups and institutions”) into a commanding order (i.e., a constitutional order that “shape[s] the conduct of individuals, groups, and political actors to produce a society that has a specific character”).

In accord with this commanding order, the federal judiciary has emancipated the individual from the strictures of the past, including the traditional institutions of family, church, and community. This has had the effect of also emancipating us from one another, thus denying the “social bond individualism” that Richard Weaver found to be a critical part of a stable liberal order. And our emancipation from the past has severed us from the world we are creating. Traditions, as Burke described them, create “a partnership” not only among the living, but also among “those who are dead, and those who are to be born.” For this reason, Burke concluded that a people “who never look backward to their ancestors . . . will not look forward to posterity.”

How ironic, then, that Chief Justice Roberts would invoke Burke in his June Medical opinion, a case that, in striking down restrictions on abortion clinics, reaffirmed the Roe line of cases creating a constitutional right to abortion—in other words, the right to be emancipated from one’s posterity. June Medical is wrong, not because it got stare decisis wrong (as DeGirolami alleges), but because it got the meaning of tradition—and the meaning of personhood—wrong.

None of this is to say that DeGirolami’s effort is not worthwhile. But it does seem out of tenor with our current predicament. The task for a traditionalist is not to find a place for originalism and stare decisis in the American legal landscape, but rather to find a place for tradition in a political and legal culture that exalts emancipation as the highest good.

Faced with this task, DeGirolami may find that preserving the American tradition does not simply mean picking up a legal thread. It may, instead, mean picking up the needle and starting a new one.

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