Movsesian on Courts’ Responses to COVID Restrictions

I’m happy to announce that my essay, “Law, Religion, and the COVID-19 Crisis,” is now available in the Journal of Law and Religion (Cambridge). The essay discusses courts’ responses to COVID restrictions on public worship worldwide, and what the response of American courts indicates about our deep polarization in this country. Here’s the abstract:

This essay explores judicial responses to legal restrictions on worship during the COVID-19 pandemic and draws two lessons, one comparative and one relating specifically to U.S. law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the United States specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID-19 crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-century pandemic.

Law, Religion, and the Covid Crisis

I have a new draft on SSRN, “Law, Religion, and the Covid Crisis,” comparing how courts across the globe have approached restrictions on public worship and exploring what the cases reveal about social divisions, especially in the United States. Here’s the abstract:

This essay explores judicial responses to legal restrictions on worship during the COVID pandemic and draws two lessons, one comparative and one relating specifically to US law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the US, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the US, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the US, specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-lifetime pandemic.

The essay will appear in the forthcoming volume of the Journal of Law and Religion. Comments welcome!

Movsesian Named Co-Editor of the Journal of Law and Religion

We are delighted to announce that the Journal of Law and Religion (Cambridge University Press) has named Center Co-Director Mark Movsesian to its board of editors. Professor Movsesian will assist the interdisciplinary, peer-review journal in selecting and developing articles for publication.

“I am grateful for the invitation and am delighted to join the Journal‘s editorial board,” Professor Movsesian said. “I look forward to helping the journal continue to explore issues at the intersection of law and religion, both domestically, in the United States, and across the globe.”

More information about the Journal and its editorial board is here.

Moscow State University Roundtable

I was delighted to speak at a roundtable on law and religion at Lomonosov Moscow State University this morning, along with faculty colleagues from Russia, Greece, Canada, Italy and Israel. Comparative studies add so much to the understanding of church-state issues, and it is always striking how the same issues come up in so many cultures–though not the same answers. The questions from other scholars and the student participants were great. Thanks for Prof. Gayane Davidyan at Lomonosov for inviting me!

UPDATE: For anyone interested, Lomonosov has now posted the YouTube Video of the event:

Law & Religion Roundtable at Lomonosov-Moscow State (Nov. 25)

A programming note: on Wednesday, November 25, I will participate in a roundtable on law and religion sponsored by the Faculty of Law at Lomonosov Moscow State University. The roundtable, organized by Lomonosov Professor Gayane Davidyan, will take place online starting at 17:30 Moscow time. Visitors are welcome. Please use the You Tube link here. The roster for the roundtable, along with the titles of the presentations, is below. Stop by and say hello!

  • Mark Movsesian, Frederick A. Whitney Professor, Co-Director of Center for Law & Religion, St. John’s Law School, United States, Church-State Cases at the US Supreme Court in 2020
  • Lina Papadopoulou, Associate Professor, Law School, Academic Coordinator of the Jean Monnet Centre of Excellence “European Constitution and Religion”, Aristotle University of Thessaloniki, Greece, God and the Constitution in a country (Greece) with a prevailing religion
  • Andrea Pin, Associate Professor, Department of Public, International and Community Law, University of Padua, Italy, The Constitution as an ID
  • Kathryn Chan, Associate Professor, Faculty of Law, University of Victoria, Canada, The source and scope of religious freedom in Canada
  • Xavier Barre, Ph.D in Law, Avocat au barreau de Paris, Member of New York Bar and Advocat of Moscow Regional bar
  • Anton Kanevsky, Associate Professor of Higher School of Economics, Moscow, Russia, Attorney in Jerusalem, The Divine Name in Earthly Affairs: Non-specific Talmudic Legal Principles and Israeli Practice
  • Gayane Davidyan, Associate Professor, School of Law, Lomonosov Moscow State University, Director Center of Law and Religion, Can God be Constitutional?

Laicite in Quebec

Je Me Souviens?

When profoundly Catholic societies go off religion, they really go off religion. Religion doesn’t become simply a matter of indifference; people seem to feel they must uproot religion entirely from public life, in order to compensate for and distance themselves from the benighted ways of the past.

Societies need some common identity to bind them, though, and when shared religion is no longer an option, they substitute other things. In a First Things essay this week (“Canada Divided Against Itself”), David Koyzis observes this dynamic at work in Quebec. Once a famously Catholic place, he says, since the Quiet Revolution of the 1960s, Quebec has become an overwhelmingly secular society. (Strangely, they have kept a very Catholic-looking flag (above)). The province’s motto may be “Je me souviens,” but the Quebecois are trying to forget all about their religious tradition. What unites the province today, he says, is not Catholicism, but Quebecois national identity:

Ironically, despite the secularizing impact of the Quiet Revolution, Québec has not abandoned religious faith; it has simply redirected that faith toward a state-centered nationalism, around which the province’s main parties are largely united. What was once a French Canadian nationalism bent on defending a Catholic society whose traditions harked back to pre-revolutionary France has become Québec nationalism, which looks to the state to protect the province’s linguistic majority in a sea of English-speaking jurisdictions. If protecting this majority comes at the expense of minority interests within the province, then so be it.

As evidence, Koyzis adduces a new law that prohibits public employees from wearing religious symbols–crucifixes, kippas, hijabs–while on the job. The idea, he says, is to encourage the Quebecois to think of themselves, not as members of distinct religious communities, but simply as Quebecois. This is the same reasoning behind the ban on burkas in public places, and the ban on “conspicuous” religious symbols in public schools, in France.

Koyzis says that the forceful laicite of Quebec is in tension with the multiculturalism that animates Canadian public life outside the province. I don’t know enough about Canada to evaluate that argument. But his point about nationalism as a substitute for religion seems sound. You can read the whole piece here.

A Comparative Study of Religion and Politics

Politics in America increasingly divides on the question of religion. Religious Americans tend to gravitate to the Republican Party; secular Americans, to the Democrats. Religion also figures prominently in the politics of other countries. Later this year, Routledge will release a collection of essays on the ways religion and politics intersect across the world: The Routledge Handbook to Religion and Political Parties. The editor is Jeffrey Haynes (London Metropolitan University). Here’s the description from the Routledge website:

As religion and politics become ever more intertwined, relationships between religion and political parties are of increasing global political significance. This handbook responds to that development, providing important results of current research involving religion and politics, focusing on: democratisation, democracy, party platform formation, party moderation and secularisation, social constituency representation and interest articulation.

Covering core issues, new debates, and country case studies, the handbook provides a comprehensive overview of fundamentals and new directions in the subject. Adopting a comparative approach, it examines the relationships between religion and political parties in a variety of contexts, regions and countries with a focus on Christianity, Islam, Buddhism, Judaism and Hinduism. Contributions cover such topics as:

Religion, secularisation and modernisation

Religious fundamentalism and terrorism

The role of religion in conflict resolution and peacebuilding

Religion and its connection to state, democratisation and democracy, and

Regional case studies covering Asia, the Americas, Europe, Sub-Saharan Africa, the Middle East and North Africa.

This comprehensive handbook provides crucial information for students, researchers and professionals researching the topics of politics, religion, comparative politics, secularism, religious movements, political parties and interest groups, and religion and sociology.

Comparative Conscience Exemptions

Religious accommodations figure prominently in current debates about law and religion. This past summer, Hart released a collection of essays on such exemptions in the UK, Canada, and the United States, Religious Beliefs and Conscientious Objections in a Liberal State. The editor is John Adentire (University of Birmingham). Here’s the description from the publisher’s website:

The central focus of this edited collection is on the ever-growing practice, in liberal states, to claim exemption from legal duties on the basis of a conscientious objection. Traditional claims have included objections to compulsory military draft and to the provision of abortions. Contemporary claims include objections to anti-discrimination law by providers of public services, such as bakers and B&B hoteliers, who do not want to serve same-sex couples. The book investigates the practice, both traditional and contemporary, from three distinct perspectives: theoretical, doctrinal (with special emphasis on UK, Canadian and US law) and comparative. Cumulatively, the contributors provide a comprehensive set of reflections on how the practice is to be viewed and carried out in the context of a liberal state.

Daniel Philpott on Religious Freedom in Islam

9780190908188Notre Dame political scientist Daniel Philpott has spent his career working at the intersection of religion and politics. His co-authored book, God’s Century (2011), is a must for people trying to understand the role of religion in contemporary global politics. He is also one of the directors of Under Caesar’s Sword, a research project on the persecution of Christians today. So his forthcoming book, Religious Freedom in Islam: The Fate of a Universal Human Right in the Muslim World Today (Oxford), is bound to be of interest. Based on the publisher’s description, the book will chart a middle ground between those who argue that religious freedom simply does not exist in the Muslim world, which is not true, and those who paint an unrealistically optimistic picture of the situation non-Muslim minorities face:

Since at least the attacks of September 11, 2001, one of the most pressing political questions of the age has been whether Islam is hostile to religious freedom. Daniel Philpott examines conditions on the ground in forty-seven Muslim-majority countries today and offers an honest, clear-eyed answer to this urgent question.

It is not, however, a simple answer. From a satellite view, the Muslim world looks unfree. But, Philpott shows, the truth is much more complex. Some one-fourth of Muslim-majority countries are in fact religiously free. Of the other countries, about forty percent are governed not by Islamists but by a hostile secularism imported from the West, while the other sixty percent are Islamist.

The picture that emerges is both honest and hopeful. Yes, most Muslim-majority countries are lacking in religious freedom. But, Philpott argues, the Islamic tradition carries within it “seeds of freedom,” and he offers guidance for how to cultivate those seeds in order to expand religious freedom in the Muslim world and the world at large.

It is an urgent project. Religious freedom promotes goods like democracy and the advancement of women that are lacking in the Muslim-majority world and reduces ills like civil war, terrorism, and violence. Further, religious freedom is simply a matter of justice–not an exclusively Western value, but rather a universal right rooted in human nature. Its realization is critical to the aspirations of religious minorities and dissenters in Muslim countries, to Muslims living in non-Muslim countries or under secular dictatorships, and to relations between the West and the Muslim world.

In this thoughtful book, Philpott seeks to establish a constructive middle ground in a fiery and long-lasting debate over Islam.

Movsesian on the Ashers Case

Bristol UniversityAt the Liberty Law site today, I have a post discussing the UK Supreme Court’s ruling this month in Lee v. Ashers Bakery, a wedding-vendor case from Belfast. The British case deals with several substantive issues that our own Supreme Court dodged earlier this year in Masterpiece Cakeshop. The British court’s president, Barbara Hale (left), wrote for a unanimous court:

Even though the issues do not line up exactly, Lady Hale’s opinion addresses many of the difficult questions that arise in the American context as well: whether denying services in connection with gay weddings is equivalent to denying services to gay persons; whether one should attribute certain kinds of commercial speech to the vendor or the customer; and whether the state’s interest in ending discrimination in public places overrides the religious convictions of persons who operate small businesses. The fight over these issues is still in its early stages, in Britain and America. This decision may provide guidance for the way forward.

Readers can find my post here.