Around the Web

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

  • The Fifth Circuit Court of Appeals heard oral arguments in Freedom From Religion Foundation v. Mack. The arguments come after a Texas federal district court held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause.
  • In Mahoney v. United States Capitol Police Board, a D.C. federal district court refused to grant a preliminary injunction to a clergyman who was denied a permit to hold a large prayer vigil on part of the Capitol grounds.
  • In Weston v. Sears, an Ohio federal magistrate judge recommended that Plaintiff, a Seventh Day Adventist, be permitted to proceed in forma pauperis with her Title VII claim for religious discrimination. Plaintiff was fired for failing, until after the end of her Sabbath, to return multiple phone calls from her manager.
  • Arizona Governor Doug Ducey has signed a bill prohibiting discrimination against faith-based adoption and foster care organizations, including a requirement that they place children in same-sex households when doing so would violate their religious beliefs.
  • In Affaire Assemblée chrétienne des Témoins de Jéhovah d’Anderlecht et autres c. Belgique, the European Court of Human Rights ruled in favor of a Jehovah’s Witness congregation in Belgium that was denied a property tax exemption for property they used for religious worship.
  • Spain’s Senate voted Wednesday in favor of a bill that amends the country’s penal code to criminalize “harassment” of women entering abortion clinics.

Last Week’s Reading Society Meeting with Mark Lanier

Here’s a nice write-up of last week’s Reading Society session on C.S. Lewis’s “Learning in War-Time,” led by lawyer and scholar Mark Lanier of the Lanier Theological Library. Thanks to Mark for traveling to New York to lead the session and to and all who attended. The Reading Society will be back next semester. See you then!

Around the Web

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

  • In Austin v. U.S. Navy Seals 1-26, the Supreme Court, by a vote of 6-3, stayed a Texas district court’s order that barred the Navy from considering the COVID-19 vaccination status of service members who object to the vaccine on religious grounds in making decisions regarding deployment, assignment, and operations. 
  • The Supreme Court denied review in Brysk v. Herskovitz, in which the Sixth Circuit had dismissed a suit brought by synagogue members against anti-Israel picketers who have picketed services at the Beth Israel Synagogue since 2003.
  • In Keister v. Bell, the Eleventh Circuit rejected a challenge brought by a traveling evangelical preacher against the University of Alabama after the University prohibited the preacher from setting up a banner, passing out literature, and preaching on a campus sidewalk because he did not have a permit. The court found the sidewalk was a limited public forum and thus the University could impose reasonable, viewpoint-neutral restrictions.
  • In Wagner v. Saint Joseph’s/Candler Health Systems, Inc., a Georgia federal district court held that a hospital did not violate Title VII after it fired an Orthodox Jewish employee for taking seven days off to observe the Fall Jewish holidays.
  • In Denton v. City of El Paso, a Texas federal magistrate judge concluded that the plaintiff’s First Amendment rights were violated by a city policy that prohibited the plaintiff from proselytizing at the Downtown Art and Farmers Market.
  • A Christian doctor, who lost his job for refusing to use patients’ preferred pronouns, will appear before a tribunal in the United Kingdom this week to challenge a ruling that held that biblical beliefs on gender are “incompatible with human dignity.”
  • In Christian Religious Organization of Jehovah’s Witnesses in the NKR v. Armenia, the European Court of Human Rights held that refusal by Nagorno Karabakh to register Jehovah’s Witnesses as a religious organization amounts to a violation of Article 9 of the European Convention on Human Rights.

Fourth Session of the CLR Reading Society: Lewis’ “Learning in War-Time”

Yesterday, a group of us from St. John’s gathered together to discuss C.S. Lewis’ famous sermon, “Learning in War-Time.” The event was one of the Center’s Reading Society gatherings, and we were lucky to speak together with Mark Lanier of the Lanier Theological Library in Houston, Texas. Mark brought up the original draft of Lewis’ sermon, hand-written and, in fact, only very lightly edited. I have attached the first page of the original below. One of many interesting insights one gains from the original is that at the very top, you can see a reference to “Deut XXVI:5 A Syrian ready to perish was my father.” This reference did not make it into the published lecture. But it is evocative of one of the themes of the sermon: the worth of seemingly frivolous or unwise activities (as learning and the pursuit of knowledge may at times seem to be) during a time of great danger, friction, and upheaval. The piece repays close and regular reading, for Christians and others alike. We were lucky to have the chance to reflect on it together.

Tradition and Strict Scrutiny

Over at the Volokh site, I have a post on last week’s decision in Ramirez v. Collier, in which the Supreme Court ruled in favor of a death-row inmate who argued that prison officials violated RLUIPA by refusing to allow him to have a clergy present at his execution. RLUIPA requires prison restrictions to meet strict scrutiny: the state must justify restrictions on religion by showing that it has chosen the least restrictive means of satisfying a compelling interest.

Strict scrutiny, which applies in many areas of constitutional law, in practice operates as a balancing test. Critics (including me) have pointed out that the test is inherently indeterminate, depending largely on the intuitions of the particular judges hearing a case. In a separate concurrence in Ramirez, Justice Kavanaugh argues that tradition can help make the test less subjective:

In Ramirez, for example, prison officials had concluded that the marginal benefit of excluding pastors from the execution chamber outweighed the burden on inmates’ RLUIPA rights. Chief Justice Roberts and the majority evidently disagreed. But how were they to know? “It is difficult for a court applying” strict scrutiny, Kavanaugh wrote, “to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear.” If the justices’ intuitive judgments are all that make the difference, that hardly seems legitimate.

Here, according to Kavanaugh, is where tradition can help. For centuries in American practice, clergy have been present at executions. And that practice continues today. The presence of clergy, in other words, is a living tradition. “Although the compelling interest and least restrictive means standards are necessarily imprecise,” Kavanaugh wrote, “history and state practice can at least help structure the inquiry and focus the Court’s assessment of the State’s arguments.” Kavanaugh wrote separately to emphasize this aspect of the Court’s reasoning.

Here’s a link to my post.

The Australia School and Politico-Theological Inquiry: Joel Harrison Responds

[In response to some thoughts I had posted about interesting developments in law and religion in Australia, Professor Joel Harrison had these illuminating observations, which he has given me permission to post. MOD]

In his blog post, Professor DeGirolami raises a possible emerging ‘Australian School’ – Australian-based scholars who are interested in Christian theological concerns and justifying religious freedom in light of this. Professor DeGirolami’s post spurred a few initial thoughts in response; I’m grateful he invited me to share them here.

First, although developing a theological jurisprudence is certainly not something unique to scholars in one place, is there something about Australia that may allow this to grow? One possible angle for reflection is on a ‘trans-Atlantic’ difference, and its continuing relevance to Australia. 

The trans-Atlantic difference puts me in mind of the theologians Stanley Hauerwas and John Milbank. Hauerwas the American is anti-Constantinian and sees the violence of the State as the primary thing to resist. Separation is necessary to maintain a prophetic difference – or even just survival of the Church as the Church. Although much indebted to Hauerwas, Milbank the Brit understands Christendom and Christianity as coterminous – Christianity means (complexly) instantiating a political-spiritual project. More broadly, and as generalisation, the boundaries of church and State discourse or what is a matter for theology and what is a matter for law are more blurred on one side of the Atlantic.       

Of course, Australia is not either country. It is a former colony and still part of the Commonwealth, but it also has a strong United States-flavour. Constitutionally it is sometimes described as having a ‘Washminster’ system, with its blending of federalism and responsible government. Culturally and politically, it can swing between looking to one country or the other.  

That said, I wonder whether it is still possible to have more of a ‘British’ sensibility in Australia and talk about cooperative arrangements between church and State, or even develop public debate in theological terms. We can add to this an ongoing relationship to First Peoples, who are partly recognised at State and federal level as maintaining a spiritual or metaphysical connection with the land, as judges of the High Court of Australia recently stated. Although Australia was not permitted to have an established church, this requirement was not opposed to a religiously infused culture and politics. That is not entirely dissimilar from the United States, but Australia perhaps historically went further – maintaining something of that British inheritance in a colonial context. To this day, for example, despite some voices in Australia saying otherwise, it is very difficult to claim a ‘Rawlsian consensus’ of public reason or even that this is something of significant debate.  

Second, this growth in theological concern takes place against an emerging culture war dynamic. Recent years in Australia have seen a remarkable shift. Matters that were previously uncontroversial – like a Catholic, Jewish, or Muslim school’s liberty to hire only members of the religious tradition – are now challenged. It is not difficult to find outright hostility to religious groups or at least non-comprehension. (In one example, an Australian rights group argued the State needed to protect nuns from the Catholic Church, which was infringing their right to private and family life.) This takes place against the backdrop of numerous parliamentary inquiries into religious liberty. Different lobby groups on both sides have sprung-up. With each new inquiry they have escalated their rhetoric, stating the opposing side poses an existential threat that demands immediate action (and presumably more funding and support). In this context, the turn to theological frames (often a version of postliberalism) can reflect an interest in finding resources beyond the culture war. 

It serves a critical function and a productive function. 

Critically, the turn to theology helps to unmask any continuing claims to neutrality. Most notably in the context of religious liberty debates, it helps us to understand how the appeal to autonomy as promoted within liberal frames is not divorced from a theological view – what it means to be free and how this understanding came to be, what the role of civil authority is in relation to this. A theological turn offers insight into our current context: different groups engaging in an agonistic discourse of incommensurable claims to liberty. 

Productively then, the turn to theology looks for an alternative. Thus, we see language of the common good, duty, virtue, solidarity, peace, and charity developed in aid of asking what the shape of a complex, good society should be. 

This raises a final important point that I think should shape any apparent ‘school’ interested in theological jurisprudence. Often religious liberty claims are framed as simply protecting a particular community’s own backyard: my liberty, my autonomy, my freedom from x. However, this turn to theology aims at something more – contemplating the future of our shared life. This is not a question simply for Australian-based scholars, of course.  But I’m certainly glad we splendidly named ‘young upstarts’ can make a contribution (and await criticism).

Around the Web

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

  • The U.S. Supreme Court denied review in Seattle’s Union Gospel Mission v. Woods, a case involving whether religious groups are exempt from state non-discrimination employment laws.
  • In Ramirez v. Collier, the U.S. Supreme Court held that a death row prisoner was likely to succeed on his Religious Land Use and Institutionalized Persons Act (“RLUIPA”) lawsuit challenging limits on his pastor’s activities in the execution chamber. The Court held that petitioner is entitled to a preliminary injunction barring Texas from proceeding with his execution without permitting his pastor, during the execution, to lay hands on the prisoner and audibly pray with him.
  • In Canaan Christian Church v. Montgomery County Maryland, the Fourth Circuit Court of Appeals held that Montgomery County did not violate a church’s rights under RLUIPA or the First Amendment when it refused to extend public sewer lines to properties on which the church proposed to construct new buildings.
  • In Catholic Charities West Michigan v. Michigan Department of Health and Human Services, a Michigan federal district court approved a settlement agreement after the Michigan Department of Health and Human Services conceded it would violate the First Amendment to take any adverse action against Catholic Charities because the ministry prioritizes placing foster and adoptive children in homes with a married mother and father.
  • In United States v. City of Troy, a Michigan federal district court held the city of Troy, Michigan had violated the “equal terms” provisions of RLUIPA and enjoined the city from enforcing its zoning ordinance that imposes stricter standards on places of worship than it does on non-religious uses in the same zoning district.
  • In Kariye v. Mayorkas, suit was filed by three Muslim Americans who claim U.S. Customs and Border Protection agents asked them religiously intrusive questions upon their return from international travel.

The Australia School

I’m back from a superb conference orchestrated by Professor Helen Alvaré at the Liberty & Law Center at George Mason Law School on some of the current and future challenges and prospects in law and religion. I’ll have more to say about my paper, “The New Disestablishments,” by and by, but for the present I will note that I was grateful for improving and insightful criticisms from the group, including those of Professor Fred Gedicks, who was my commenter.

One of the things that occurred to me at the conference was that it seems a new school of thought about religious liberty is emerging in some young upstart scholars, in Australia. I’m only just coming to learn of The Australia School, and so I am going to miss what are new and interesting scholars in it. Indeed, calling it The Australia School assumes some kind of unity of thought, and I am certainly not suggesting there is such unity. But at the very least, The Australia School will include scholars like Professor Joel Harrison and his Post-Liberal Religious Liberty: Forming Communities of Charity; Professor Alex Deagon (who presented at the conference) and his From Violence to Peace: Theology, Law and Community; and Professor Neil Foster, who has written about when it is and is not appropriate for courts to decide matters that impinge on religious doctrine. I am missing many, I’m sure (and apologize preemptively to those I have not discussed). I don’t want to overgeneralize, but this is a blog post, and it would be boring not to offer at least some thematic observations about The Australia School. So are there any discernible themes? 

Both Harrison and Deagon are deeply interested in Christian theological concerns, and both offer justifications for religious freedom rooted in theological considerations. Both rely on the work of John Milbank–not identically, but substantially. Indeed, I have a review over here of Harrison’s book, trying in summary form to describe the way Harrison reimagines religious freedom and devises justifications for it that are new and represent a different direction (with words of praise, though there was a criticism or two also!). Foster also is interested in the issue of the relationship of religious doctrine to civil power. And Deagon emphasizes issues of the unity of peaceful co-existence, also through a theological lens. Both the influence of Milbank on these scholars and their theological orientation are notable; I can discern only very few similarly oriented projects over in our corner of the world. One question I’ve been thinking about is just why. 

As I say, I’m just learning about The Australia School and there are likely many differences and disagreements already emerging within it. But it’s a fresh and interesting development in the law and religion world.

Around the Web

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

  • The Supreme Court has relisted two cases involving religious exercise claims, Seattle’s Union Gospel Mission v. Woods and Hedican v. Walmart Stores East, L.P., for its upcoming conference.
  • A Kansas teacher filed suit against her school district superintendent, board members, and principal after being suspended for refusing to use a student’s preferred name due to her religious beliefs.
  • In Heras v. Diocese of Corpus Christie, a Texas appellate court affirmed the dismissal of two priests’ defamation suits on ecclesiastical abstention grounds.
  • Ohio Governor signed into law Senate Bill 181, which allows students to wear religious apparel while competing in athletic competitions or extracurricular activities.
  • In Resham v. State of Karnataka, a 3-judge panel of the High Court of the Indian state of Karnataka upheld a ban on hijabs in schools and colleges. The Court stated that the “wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.”
  • Quebec’s new Bill 21 bans Canadians working as teachers, lawyers, police officers, and more from wearing religious symbols such as crosses, hijabs, turbans and yarmulkes.
  • Israel’s Chief Ashkenazi Rabbi David Lau, in a letter to Israel’s attorney general, has proposed setting up a special religious court to assist the expected 30,000 plus Ukrainian refugees.

Tosato on Biblical Interpretation

Here is an interesting new book from the Pontifical Gregorian University’s press, The Catholic Statute of Biblical Interpretation by Fr. Angelo Tosato, newly translated into English by our friend and frequent academic collaborator, Prof. Monica Lugato of LUMSA. Fr. Tosato, who died in 1999, was a professor at the Lateran and the Gregorian Universities, specializing in Biblical interpretation. But the book is accessible to non-experts as well. Among the topics it covers are the concept of the Bible as a set of divinely inspired texts mediated through human authorship, and the distinction between what Tosato calls “the bishops’ judicial interpretation” of the Bible, which may be authoritative for Catholics at any given time, and the “authentic” interpretation, which is known fully only to God. Because a space inevitably exists between the judicial and authentic interpretation, Tosato argues, the former is always subject to rethinking–guided, of course, by Holy Tradition.

Here is the description of the book from the publisher:

A «rigorous and exhaustive study on the official Catholic doctrine in the realm of Biblical interpretation», this work is «defended by heavily equipped garrisons of quotations in Latin, Greek, and Hebrew, and fortified by walls of Church documents» and based upon a «a profound knowledge of juridical questions and problems». The Author begins by clarifying the definition of the Bible for the Catholic faith, then explores its nature, origin, purpose and functions in relation to its different addressees, finally analysing the prerequisites, criteria, and forms of accurate biblical interpretation. «One detail may draw the reader’s attention. Angelo Tosato asserts, with solid reasons, that the juridical authority of the Magisterium is limited to the actualised interpretation of biblical texts for our world, and has not to deal with the proper exegetical and scientific task of recovering the original meaning of these texts. The Magisterium’s decisions, moreover, can be modified, corrected, and rectified, as every human decision». But this is just one of the many components of the Catholic Statute of biblical interpretation, a Statute that seeks to reveal «the vast and gorgeous panoramas of a truthful interpretation of our Scriptures».