Just a reminder that the Center will host a panel discussion in midtown Manhattan tonight on religious liberty at the US Supreme Court. The discussants will be myself and Judge Richard Sullivan of the Southern District of New York. Details and RSVP info are here. CLR Forum readers, please stop by and say hello!
John Huleatt, an alumnus of St. John’s Law School and General Counsel for the Bruderhof Community, a Christian group with roots in the Anabaptist tradition, has posted an interesting reflection on the Obergefell decision and the implications for religious liberty. Here’s a sample:
Accordingly, the state exceeds its legitimate authority when it lends its authoritarian power to either side in this debate. Protecting gays from discrimination in nonreligious matters is an appropriate concern for government and believers alike. But if the government requires believers to act in violation of their conscience in the name of so-called anti-discrimination, it is going too far. The United States, more than most other countries, has a long history of successfully accommodating competing rights. For this to continue, the state and proponents of gay marriage need to understand that no compromise for believers is possible where conscience is at stake. Thus free exercise of religion must be protected just as much as other civil rights. Religious dissent does not lose protection merely by being labeled discrimination. If the American public and the executive, legislative, and judicial branches of our government fail to recognize this, many people who are (in Justice Kennedy’s words) “reasonable and sincere” will have no choice but to resort to civil disobedience.
You can read Huleatt’s essay here.
In September, the Oxford University Press will release “Founding Sins: How a Group of Antislavery Radicals Fought to Put Christ into the Constitution,” by Joseph S. Moore (Gardner-Webb University). The publisher’s description follows:
The Covenanters, now mostly forgotten, were America’s first Christian nationalists. For two centuries they decried the fact that, in their view, the United States was not a Christian nation because slavery was in the Constitution but Jesus was not. Having once ruled Scotland as a part of a Presbyterian coalition, they longed to convert America to a holy Calvinist vision in which church and state united to form a godly body politic. Their unique story has largely been submerged beneath the histories of the events in which they participated and the famous figures with whom they interacted, making them the most important religious movement in American history that no one remembers.
Despite being one of North America’s smallest religious sects, the Covenanters found their way into every major revolt. They were God’s rebels–just as likely to be Patriots against Britain as they were to be Whiskey Rebels against the federal government. As the nation’s earliest and most avowed abolitionists, they had a significant influence on the fight for emancipation. In Founding Sins, Joseph S. Moore examines this forgotten history, and explores how Covenanters profoundly shaped American’s understandings of the separation of church and state.
While modern arguments about America’s Christian founding usually come from the right, the Covenanters have a more complicated legacy. They fought for an explicitly Christian America in the midst of what they saw as a secular state that failed the test of Christian nationhood. But they did so on behalf of a cause–abolition–that is traditionally associated with the left. Though their attempts to insert God into the Constitution ultimately failed, Covenanters set the acceptable limits for religion in politics for generations to come.
This item is getting some deserved attention: Bill Kristol has posted a long-form, uninterrupted interview with Supreme Court Justice Samuel Alito on his “Conversations with Bill Kristol” site. I highly recommend it for anyone who wants to know more about the inner workings of the Court and the intellectual debates that have informed American law for the past generation. Justice Alito’s discussion of his dissent in Obergefell, which you can access here, will particularly interest readers of this site. Alito argues that the case represents a return to an unmoored jurisprudence of unenumerated rights, divorced both from constitutional text and national history and tradition. Worth watching.
For those who are interested, my quick reaction to yesterday’s ruling in Obergefell is in a symposium today at the First Things website. I discuss the Court’s reasoning and the implications for religious liberty. Here’s a snippet:
First, although some commentators predicted that the Court would issue a narrow, pro-gay marriage ruling, the reasoning of Justice Kennedy’s majority opinion is actually quite sweeping, returning the Court to the heady days of substantive due process and unenumerated rights. Forget about textualism and originalism. As Chief Justice Roberts points out in his dissent, even the restraints of “history and tradition,” a limit Justice Harlan once suggested, are effectively shunted aside. A five-justice majority believes that same-sex marriage is a fundamental element of personal liberty, and that makes it a constitutional right.
For constitutional conservatives, this is very disheartening—whatever one’s views on the merits of same-sex marriage as a policy matter. After thirty years and more of trying assiduously to end, or at least limit, substantive due process, the doctrine still carries the day. As Justice Alito writes in his dissent, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of discretion have failed. A lesson that some”—actually, anyone paying attention—“will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means.” Incidentally, today’s ruling demonstrates again how important the 1987 defeat of Robert Bork was, and how much Senate Democrats gained in putting up such a fight against him. It was the defeat of Bork that led to the nomination of Anthony Kennedy.
You can read my analysis, along with the other contributions to the symposium, here.
In March, Rowman & Littlefield released “Religious Liberty and the American Supreme Court: The Essential Cases and Documents, Updated Edition” by Vincent Phillip Munoz (University of Notre Dame). The publisher’s description follows:
Throughout American history, legal battles concerning the First Amendment’s protection of religious liberty have been among the most contentious issue of the rights guaranteed by the United States Constitution. Religious Liberty and the American Supreme Court: The Essential Cases and Documents represents the most authoritative and up-to-date overview of the landmark cases that have defined religious freedom in America. Noted religious liberty expert Vincent Philip Munoz (Notre Dame) provides carefully edited excerpts from over fifty of the most important Supreme Court religious liberty cases. In addition, Munoz’s substantive introduction offers an overview on the constitutional history of religious liberty in America. Introductory headnotes to each case provides the constitutional and historical context. Religious Liberty and the American Supreme Court is an indispensable resource for anyone interested matters of religious freedom from the Republic’s earliest days to current debates.
This June, Oxford University Press will release “Secularism, Catholicism, and the Future of Public Life: A Dialogue with Ambassador Douglas W. Kmiec” edited by Gary J. Adler, Jr. (University of Southern California). The publisher’s description follows:
How can religion contribute to democracy in a secular age? And what can the millennia-old Catholic tradition say to church-state controversies in the United States and around the world? Secularism, Catholicism, and the Future of Public Life, organized through the work of the Institute for Advanced Catholic Studies (www.ifacs.com), responds to these questions by presenting a dialogue between Douglas W. Kmiec, a leading scholar of American constitutional law and Catholic legal thought, and an international cast of experts from a range of fields, including legal theory, international relations, journalism, religion, and social science.
This March, Rowman and Littlefield Publishers will release “American Law from a Catholic Perspective: Through a Clearer Lens” edited by Ronald Rychlak (University of Mississpi School of Law). The publisher’s description follows:
As Gerard V. Bradley, Professor of Law at the University of Notre Dame, asks in his foreword: “What then should one expect to learn from a volume about American law from a Catholic perspective?” His answer is a straightforward one: “One should expect a critical guide to the moral evaluation of laws,” noting of the essays collected in American Law from a Catholic Perspective: Through a Clearer Lens: “The moral evaluative perspective which unfolds in succeeding pages illumines, justifies, and critiques America’s laws.”
Edited by Ronald J. Rychlak, American Law from a Catholic Perspective is one of the most comprehensive surveys of American legal topics by a gathering of major Catholic legal scholars. Contributors explore, among other subjects, bankruptcy, bioethics, corporate law, environmental law, ethics, family law, immigration, intellectual property, international human rights, labor law, legal education, legal history, military law, the philosophy of law, property, torts, and several different aspects of constitutional law, including religious freedom, privacy rights, and free speech.
Here readers will find probing arguments that bring the critical perspective of Catholic social thought to bear on American legal jurisprudence. Essays include Michael Ariens’ account of Catholicism in the intellectual discipline of legal history; William Saunders’ assessment of human rights and Catholic social teaching; Hadley Arkes’ look at the place of Catholic social thought with respect to bioethics; Lucia Silecchia’s examination of a Catholic understanding of stewardship with respect to environmental laws; Dorie Klein’s consideration of the place of Catholic views on the death penalty and Eighth Amendment jurisprudence; and many others on major legal topics in American jurisprudence—and their intersection with Catholic social teaching.
American Law from a Catholic Perspective: Through a Clearer Lens is essential reading for all Catholic lawyers, judges, and law students, as well as an important contribution to non-Catholic readers seeking guidance from a faith tradition on questions of legal jurisprudence. Based on well-developed and established ideas in Catholic social thought, the evaluations, suggestions, and remedies set forth offer ample food for thought and a basis for action in the realm of legal scholarship.
Here’s a follow up to last week’s post about disclaimers on “viewpoint” ads in the New York City subway. In the post, I complained about the unfair treatment the policy affords to ads with religious messages, like the one I described from Marble Collegiate Church.
As Perry Dane explains, though, the disclaimer policy is not directed at religion per se. It applies generally to noncommercial ads that express viewpoints on “political, religious, or moral issues or related matters.” The Metropolitan Transit Authority adopted the policy after losing a 2012 lawsuit over display of anti-Islam ads. A federal district court ruled that, because the subway is a public forum, the MTA could not constitutionally refuse to display the ads. So the MTA decided to add the disclaimer to them and all other “viewpoint” ads, in order to avoid any implication of government endorsement. (The sponsor of the 2012 ads, the American Freedom Defense Initiative, is currently suing the MTA over display of a new anti-Islam ad, which the MTA refuses to display even with the disclaimer, on the ground that the ad may incite violence).
Still, whatever the formal policy, the MTA appears to apply it in a rather arbitrary way. I did a little research over the weekend. From what I could find, the policy has been applied to the AFDI ads; an ad for a Spanish-language Catholic television station; an ad from the Brooklyn Diocese featuring Pope Francis; and the Marble Collegiate ad I wrote about last week. All religious. What about disclaimers on ads that express viewpoints on political, moral, and related matters? Perhaps there are examples, but I couldn’t find any. More importantly, in no time at all I found three such ads without disclaimers.
First, there’s this ad for New York Cares, a volunteer organization that runs an annual coat drive. The ad clearly expresses a moral viewpoint, namely, that many New Yorkers go without winter coats, and the community has a moral obligation to respond. In fact, the ad’s use of the Statue of Liberty, a symbol of America and the refuge it has provided for the world’s “huddled masses,” adds a political dimension. How can we tolerate such poverty in this great republic of ours? To be sure, these messages are non-verbal, but that’s what makes them so powerful. There’s no MTA disclaimer.
Or take this ad for Airbnb, a website that helps people rent space in their apartments to strangers for short stays. This ad campaign, which features New Yorkers saying how great Airbnb is for the city, has a political message as well, though you might not spot it if you’re not from New York. The company is trying to get the state legislature to loosen a law that restricts the use of private apartments as hotels. The ads are an obvious attempt to win public support for that effort. Still, notwithstanding the ad’s political implications, there’s no MTA disclaimer.
Finally, here’s the latest ad campaign for Manhattan Mini Storage. The company is famous for ironic, edgy ads that appeal, I guess, to sophisticated New York subway riders. Here, the political message seems pretty clear. True, this might be just another ironic ad (“Can you believe she’s running again?”) but I don’t think so, given the partisan messages in the company’s past ad campaigns, like ones poking fun at Michelle Bachmann and advocating gay marriage. Yet, again, no MTA disclaimer.
Now, the MTA would presumably defend its choice not to put disclaimers on the Airbnb and Manhattan Mini Storage ads because the policy formally applies only to noncommercial ads. But that seems arbitrary. As Marc DeGirolami pointed out last week, it’s very difficult to disentangle “commercial” from “noncommercial” expression. To my mind, the Hillary ad is the most obviously political, even though its sponsors are only trying to make money. Besides, the New York Cares ad is surely noncommercial–it’s for a volunteer organization.
As I say, perhaps the MTA has put disclaimers on non-religious viewpoint ads and I simply haven’t found them. It’s significant, though, that it’s so easy to find the disclaimer on religious viewpoint ads, and so easy to find political and moral viewpoint ads without the disclaimer. Here’s a thought: perhaps the MTA should stop trying to distinguish among ads and put disclaimers on all of them–commercial, noncommercial, political, moral, and religious. That would solve the appearance-of-endorsement problem, if the problem genuinely exists, and free up MTA resources for doing something important: running the subway.
I’ve been intrigued by some recent posts on this blog and how they confirm my long-held view that the normative decisions we make with respect to the law’s treatment of religion are deeply intermeshed with cognitive choices we make — how we “see” and understand religion. Religious phenomena don’t fit easily or self-evidently into the mental maps by which we divide the pieces of the secular world. All we can do is approximate, and those approximations matter.
Let’s begin with Mark’s fascinating and wonderfully observant recent post about an ad for the Marble Collegiate Church that he recently saw in a New York City subway. The ad itself was unremarkable, touting Marble Collegiate as “Church the way you always hoped it could be.” (Marble Collegiate itself is more remarkable, founded in 1628 as a Dutch Reformed congregation and serving in the 20th century as Norman Vincent Peale’s pulpit for some 50 years.) But the ad included a prominent disclaimer form the MTA (the local transit agency) taking up the bottom third of its precious space: “This is a paid advertisement sponsored by Marble Collegiate Church. The display of this advertisement does not imply MTA’s endorsement of any views expressed.” What gives? Continue reading