Posted on by Mark Movsesian

Steve Smith on the Disintegrating Conscience

Our friend (and sometime contributor) Steve Smith of San Diego Law School writes a ton and all of it is worth reading: engaging, erudite, and thought-provoking. His latest book, The Disintegrating Conscience and the Decline of Modernity, forthcoming next month from Notre Dame Press, explores the way the concept of “conscience,” so central to religious freedom, has shifted–actually, disintegrated–over the centuries. It’s a paradox, he writes. Protecting conscience remains a fundamental Western commitment across centuries, but conscience means something very different than it did 500 years ago, something more personal, even solipsistic. Steve’s apparently not optimistic about where this will lead us. Here’s the description from the publisher’s website:

This book considers how the modern concept of “conscience” turns the historic commitment on its head, in a way that underlies the decadence of modern society.

Steven D. Smith’s books are always anticipated with great interest by scholars, jurists, and citizens who see his work on foundational questions surrounding law and religion as shaping the debate in profound ways. Now, in The Disintegrating Conscience and the Decline of Modernity, Smith takes as his starting point Jacques Barzun’s provocative assertion that “the modern era” is coming to an end. Smith considers the question of decline by focusing on a single theme—conscience—that has been central to much of what has happened in Western politics, law, and religion over the past half-millennium. Rather than attempting to follow that theme step-by-step through five hundred years, the book adopts an episodic and dramatic approach by focusing on three main figures and particularly portentous episodes: first, Thomas More’s execution for his conscientious refusal to take an oath mandated by Henry VIII; second, James Madison’s contribution to Virginia law in removing the proposed requirement of religious toleration in favor of freedom of conscience; and, third, William Brennan’s pledge to separate his religious faith from his performance as a Supreme Court justice. These three episodes, Smith suggests, reflect in microcosm decisive turning points at which Western civilization changed from what it had been in premodern times to what it is today. A commitment to conscience, Smith argues, has been a central and in some ways defining feature of modern Western civilization, and yet in a crucial sense conscience in the time of Brennan and today has come to mean almost the opposite of what it meant to Thomas More. By scrutinizing these men and episodes, the book seeks to illuminate subtle but transformative changes in the commitment to conscience—changes that helped to bring Thomas More’s world to an end and that may also be contributing to the disintegration of (per Barzun) “the modern era.”

Posted on by Marc O. DeGirolami

A Conference on Robert George’s “Making Men Moral” at 30

I’m delighted to announce a conference on Robert George’s groundbreaking book, Making Men Moral: Civil Liberties and Public Morality, on the 30th anniversary of its publication. The conference will be held November 30-December 1, and is being jointly organized by AEI, the Ethics & Public Policy Center, Pepperdine University, and the Project on Constitutional Originalism and the Catholic Intellectual Tradition at Catholic University. You can see the terrific program at the link.

I’m particularly pleased to contribute something to this conference, as Robby’s book was a major influence on me as I thought about an academic career many years ago, shaping the way I thought about so-called “legal moralism” and many other questions in constitutional law and theory that came to occupy me in later years. And I continue to use the book to this day in my own classes as a model to introduce some of the foundational questions of governance that it discusses.

Posted on by Marc O. DeGirolami · 1 Comment

Law & Religion’s Next Phase

Over the summer, I worked on an article (about which more soon) called “The Death and New Life of Law and Religion.” It is in part a historiography of the field, but it also argues that many of the concerns that motivated the field to emerge in the 1970s and 1980s are now at an end, at least insofar as their scholarly interest is concerned. No doubt, scholars, judges, and others will continue to wrangle over them for a variety of reasons. But the field feels to me like it is in transition–moving from one set of questions and objects toward another, or perhaps toward others. As these changes arrive, they will radiate outward, affecting many things. Including the work of this Center.

So I was delighted to see a new book out this fall by Rafael Domingo that appears to sound some similar themes, though with perhaps a different diagnosis, focus, and endpoint. The book is Law and Religion in a Secular Age (CUA Press).

Law and Religion in a Secular Age seeks to restore the connection between spirituality and justice, religion and law, theology and jurisprudence, and natural law and positive law by building a new bridge suitable for pluralistic societies in the secular age. The author argues for a multidimensional view of reality that includes legal, political, moral, and spiritual dimensions of human nature and society. Each of these dimensions of life needs to recognize the existence, influence, and function of the others, which act as a filter or check on the excesses of each other. This multidimensionality of reality clarifies why no legal theory can fully account for law from the legal dimension alone, just as no moral theory makes perfect sense of morality from the moral dimension—and, for that matter, nothing in physics can fully interpret the physical dimension of reality. The premises of a legal system cannot be fully explained by the legal dimension alone because the fundamental conditions and qualities of justice, freedom, and dignity touch all the dimensions of reality in which the human person acts, including the moral and the spiritual, not just the legal. Building on this multidimensional theory of reality, the author explores the core differences and the essential interconnections between law, morality, religion, and spirituality and some of the legal implications of these connections.

Rafael Domingo reminds readers of the vital role of religion in shaping the conceptual framework of Western legal systems, underscores the spirit of Christianity that inspired legal institutions, principles, and values, and recalls the contributions of specific Christian jurists as central figures for the development of justice in society.

Law and Religion in a Secular Age aims to be a valuable antidote against the dominant legal positivism that has cornered public morality, the defiant secularism that has marginalized religion, and any other legal doctrine that diminishes the spiritual dimension of law and justice.

Posted on by L&R Forum

Around the Web

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

  • In Hindu American Foundation, Inc. v. Kish, a California federal district court ruled that the Hindu American Foundation lacks standing to challenge the California Civil Rights Department’s stance on caste discrimination being a part of Hindu teachings. The court found the organization’s complaint vague and insufficient in demonstrating whom it represented. The complaint broadly claimed to defend the rights of “all Hindu Americans” and “all Americans of faith.”
  • A Texas federal court imposed sanctions on Southwest Airlines for not adhering to a previous order which found the Airline guilty of violating Title VII by firing an employee who shared her religious views on social media. The court required three of the airline’s lawyers to attend religious liberty training by Alliance Defending Freedom (ADF), a Christian legal non-profit. In response to Southwest’s objection to training with an “ideological organization,” the court emphasized ADF’s track record in winning Supreme Court cases on religious liberties.
  • In Union Gospel Mission of Yakima, Wash. v. Ferguson, a Washington federal district court dismissed, on federalism grounds, the plaintiff’s challenge to the the Washington Supreme Court’s interpretation of the state’s ministerial exception doctrine. The federal court saw the plaintiff’s challenge as an indirect attempt to overturn a prior state court decision in violation of the Rooker-Feldman Doctrine.
  • In Tilsen v. Benson, the Connecticut Supreme Court declined to a ketubah, or Jewish marriage contract, in an alimony decision. The court determined that the contract was vague and that enforcing it could breach the establishment clause. The court noted that parties could craft clear agreements that respect religious beliefs without causing legal conflicts.
  • In David v. South Congregational Church, a Massachusetts court dismissed a member’s defamation lawsuit against a church and its leaders. The member was removed from church committees over alleged unethical financial conduct. The court declined to intervene in church disciplinary decisions.
  • Three musicians have filed a lawsuit against the North Carolina Symphony alleging religious discrimination following their termination for refusing the Symphony’s 2021 COVID-19 vaccine mandate. The plaintiffs claim the Symphony violated the First Amendment and Title VII of the Civil Rights Act of 1964 by mandating the vaccine despite their religious objections. The Symphony, which reversed its vaccine mandate in August but did not reinstate the musicians, denies any wrongdoing and insists its actions were in line with health guidelines and the policies of other symphonies.
Posted on by Mark Movsesian

The First Amendment and the Supreme Court

I was delighted to appear this week as a guest on Pastor Haig Kherlopian’s podcast to discuss the history of the First Amendment, recent Supreme Court decisions on church and state, and other matters. Listen in!

Posted on by Mark Movsesian

The Decline and Fall of the American Empire?

Gibbon famously wrote that Christianity was partly responsible for the fall of the Roman Empire. By encouraging pacifism and other-worldliness, he argued, Christianity sapped Rome’s fighting spirit. Who knows? Correlation isn’t causation, after all, and anyway a Christian version of the empire survived another 1000 years in the east. But if the rise of Christianity explains Rome’s fall, what explains the apparent decline of the Pax Americana? Surely not the spread of Christian identity: the decline of American influence correlates with a decline in the percentage of Americans who identify as Christians. This week, Yale publishes a book that attempts to explain what’s going on, Why Empires Fall: Rome, America, and the Future of the West. The authors are historians Peter Heather (King’s College, London) and political economist John Rappley (Cambridge). Looks fascinating. Here’s the publisher’s description:

Over the last three centuries, the West rose to dominate the planet. Then, around the start of the new millennium, history took a dramatic turn. Faced with economic stagnation and internal political division, the West has found itself in rapid decline compared to the global periphery it had previously colonized. This is not the first time we have seen such a rise and fall: the Roman Empire followed a similar arc, from dizzying power to disintegration.

Historian Peter Heather and political economist John Rapley explore the uncanny parallels, and productive differences between ancient Rome and the modern West, moving beyond the tropes of invading barbarians and civilizational decay to unearth new lessons. From 399 to 1999, they argue, through the unfolding of parallel, underlying imperial life cycles, both empires sowed the seeds of their own destruction. Has the era of Western global domination indeed reached its end? Heather and Rapley contemplate what comes next.

Posted on by Marc O. DeGirolami

On a New Christian Humanism (in Education)

Last spring, I gave a talk called “Notes on a New Humanism in Legal Education,” organized by the Center for Law and the Human Person at Catholic University of America’s Columbus School of Law. In it, I argued that one possible model for the future of legal education might be take inspiration from the Christian humanist tradition of education pressed by various late medieval and early Renaissance thinkers (and ably described by Professor James Hankins, for example here and here).

So I was very interested to see this new book out in December, The Wisdom of Our Ancestors: Conservative Humanism and the Western Tradition (Notre Dame Press), by Graham James McAleer and Alexander S. Rosenthal-Pubul. The book presents an interesting intellectual reconstruction of the humanist tradition, offering up something the authors call “conservative humanism.” A book worth engaging.

In this book, Graham McAleer and Alexander Rosenthal-Pubul offer a renewed vision of conservatism for the twenty-first century. Taking their inspiration from the late Roger Scruton, the authors begin with a simple question: What, after all, is the meaning of conservatism? In reply, they make a case for a political orientation that they call “conservative humanism,” which threads a middle way between liberal universalism and its ideological alternatives. This vision of conservatism is rooted in the humanist tradition (that is, classical humanism, Christian humanism, and secular humanism), which the authors take to be the hallmark of Western civilizational identity. At its core, conservative humanism attempts to reconcile universal moral values (rooted in natural law) with local, particularist loyalties. In articulating this position, the authors show that the West—contra various contemporary critics—does, in fact, have a great deal of wisdom to offer.

The authors begin with an overview of the conservative thought world, situating their proposal relative to two major poles: liberalism and nationalism. They move on to show that conservatism must fundamentally take the form of a defense of humanism, the “master idea of our civilization.” The ensuing chapters articulate various aspects of conservative humanism, including its metaphysical, institutional, legal, philosophical, and economic dimensions. Largely rooted in the Anglo-Continental conservative tradition, the work offers fresh perspectives for North American conservatism.

Posted on by L&R Forum

Around the Web

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

  • In In re Parks v. Commissioner of Labor, the Appellate Division of the New York State Supreme Court upheld the denial of unemployment compensation to a medical center security guard who was terminated for refusing to comply with a Covid vaccine mandate. The court ruled that the state mandate did not allow for a religious exemption, and the security guard’s religious beliefs did not excuse compliance with a valid, religion-neutral law of general applicability. The court held that when employment is terminated due to noncompliance with such a law, even when the motives for noncompliance are religious in nature, the First Amendment does not prevent the denial of unemployment insurance benefits if the mandate has a “rational public-health basis” and is justified by a compelling government interest.
  • New York City Mayor Eric Adams announced a new initiative allowing mosques to broadcast the call to prayer on Fridays and during Ramadan without requiring a permit. The initiative comes with new legal guidance from the NYPD, emphasizing that the call to prayer is permitted in the city despite sound restrictions in neighborhoods. Mosques can now broadcast the call to prayer on Fridays from 12:30 PM to 1:30 PM and during the sunset prayers throughout Ramadan, with collaborative efforts between the NYPD Community Affairs Bureau and Muslim faith leaders to ensure compliance with noise regulations.
  • In Rutan-Ram v. Tennessee Department of Children’s Services, the Court of Appeals of Tennessee reversed the decision of a trial court that held a Jewish couple did not have standing to sue the Tennessee Department of Children’s Services. The couple sued because they were denied foster training by a state-subsidized child-placement agency because they did not share the agency’s religious beliefs. The court held that there was an injury in fact because the Tennessee statute that protected faith-based agencies from providing services to those that did not share their belief made it more difficult for members of one group to obtain services.
  • In Lax v. City University of New York, the New York Kings County Supreme Court allowed five Orthodox Jewish faculty members at Kingsborough Community College to proceed with their religious hostile work environment and retaliation claims against the school. The Jewish faculty members allege that they have been subjected to pervasive discrimination by another faculty group called the Progressive Faculty Caucus (PFC). 
  • The U.S. Conference of Catholic Bishops filed an amicus brief with the Supreme Court in a case regarding whether, consistent with the Second Amendment, the government may prohibit firearm possession by a person with a domestic violence restraining order. The brief states that the bishops support measures that control the sale and use of firearms and make them safer.
  • Kentucky, Alabama, Arkansas, Idaho, Iowa, Mississippi, Missouri, Montana, Nebraska, South Carolina, Tennessee, Texas, Utah, and West Virginia all signed an amicus brief supporting certiorari in a case challenging a New York law that bars counseling within a hundred feet of an abortion clinic, including on public sidewalks. The Second Circuit upheld the law based on Hill v. Colorado (2000).
Posted on by Mark Movsesian

Religious Accommodations: A New Comparative Study

Religious accommodations pose difficult questions for liberalism, since they require the balancing of two principles that are fundamental to it: freedom of conscience and equality before the law. A new book from Bloomsbury, Religious Accommodation and Its Limits, approaches the topic from a comparative perspective. The author is Farrah Raza (Pembroke College, Oxford). Here is the publisher’s description:

On what grounds should religious accommodation claims be limited? When do religious claims harm the autonomy of others?

This book proposes an original model of religious accommodation which can be applied in secular liberal democracies where religious diversity has been a hotly contested issue. Addressing the complex question of limitations to the right to Freedom of Religion or Belief and how these limitations might be determined, it examines how religious claims can harm the autonomy of others and emphasises the need for an appropriate balancing of competing interests. Drawing on a range of case study examples from jurisdictions including the US, Canada, the European Court of Human Rights, the European Union’s Court of Justice, the UK, Germany and France, this is a timely contribution to the debate on how a legal duty or policy approach in favour of religious accommodation can be applied in practice. Moreover, the proposed model offers criteria that may be used to guide the implementation of equality and diversity policies in contexts such as employment and education. The book will be of interest to academics, legal practitioners and policy-makers in the field.

Posted on by L&R Forum

Around the Web

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

  • In Mahmoud v. McKnight, the United States District Court for the District of Maryland refused to allow parents to opt their public-school children out of classroom reading and discussion of books with LGBTQ themes because the books’ messages violate the parents’ sincerely held religious beliefs. 
  • In Country Mill Farms, LLC v. City of East Lansing, the Eastern District of Michigan held that the city violated the Free Exercise rights of Country Mill Farms when the city refused to invite Country Mill to be a vendor at East Lansing’s Farmer’s Market because Country Mill violated the city’s anti-discrimination ordinance by refusing, for religious reasons, to rent its farm out for same-sex weddings. The court held that the discrimination ban was not generally applicable because exemptions in the ordinance allow the city to do business with firms that discriminate on the basis of sexual orientation. 
  • In Satz v. Satz, a New Jersey state appellate court upheld a trial court’s order to enforce a marital settlement agreement that the parties entered into in connection with their divorce proceedings. One provision in the agreement obligated the parties to comply with recommendations of a Jewish religious court (beis din) that required the husband to give a get (Jewish bill of divorce) to the wife. The husband’s argument that the trial court’s enforcement of the agreement violated the Establishment Clause was rejected by the appellate court.
  • In Deutsche Evangelisch Lutherische Zions Gemeinde v. Evangelical Lutheran Church in America, a New York state trial court dismissed a suit brought by a German Lutheran church in Brooklyn that claims it broke away from its parent bodies because of the parent bodies’ stance accepting same-sex marriage and ordination of gay clergy. The church asked the court to determine that its membership with the parent bodies was terminated and that the parent bodies could not take control of their church property.
  • In a press release, the Catholic Archdiocese of San Francisco announced that it has filed for Chapter 11 Bankruptcy Reorganization in order to resolve over 500 lawsuits alleging child sexual abuse brought under California Assembly Bill 218, which re-opened the statute of limitations for sexual abuse claims that would otherwise be time barred.
  • The UN Security Council scheduled an emergency meeting to address the worsening situation–and burgeoning humanitarian crisis–in the conflict between Azerbaijan and Armenia. In the Nagorno-Karabakh region, Azerbaijan took control of the only road leading to Armenia, which has created unlivable conditions in the region, leaving the Armenian Christian population without food and medicine.