In Public Discourse today, I have an essay that explains why the Court has declined to address claims that Covid vaccine mandates in places like Maine and New York violate the First Amendment. Here’s an excerpt:
The Court has not explained its reasons in these cases. But the justices’ caution is not surprising, for a few reasons. First, religious exemption claims generally pose hard questions, which are particularly troublesome in this context. The COVID-19 pandemic has intensified divisions about the value of religion and religious freedom in our country, and the justices might wish to avoid doing something to provoke further conflict. Second, the Maine and New York lawsuits are currently at the preliminary injunction stage, and the factual records in the cases are still unclear. The Court might reasonably think that it should allow the lower courts an opportunity to consider the claims further before it issues any rulings. Finally, the Court might think that state and local governments will themselves see the prudence of offering religious exemptions, as many already have done, considering the difficulties vaccine mandates have created for healthcare and other services.
The SNF Agora Institute at The Johns Hopkins University has posted a video of the webinar I participated in this week, on religious freedom in the US. The panel was moderated by The Atlantic’s Rachel Donadio; other participants included K. Healon Gaston (Harvard), Daniel Mach (ACLU) and Asma Uddin (Independent). I greatly enjoyed the panel and am grateful to the organizers for inviting me. Video below:
Religion journalist Kelsey Dallas, a past guest on Legal Spirits, interviews me in the Deseret News about my forthcoming essay in the Journal of Law and Religion on courts’ responses to Covid restrictions on public worship. Here’s a sample:
The COVID-19 pandemic has created all sorts of religious freedom conflict, as people of faith fight gathering restrictions, mask requirements and, more recently, vaccine mandates.
Your view on these legal battles likely depends on your professional, spiritual and political interests. Mark L. Movsesian, co-director of the Center for Law and Religion at St. John’s University in New York, saw them as opportunities to study the limits of the United States’ approach to religious liberty protections. . . .
When there are no easy, obvious answers, judicial bias can creep in. That’s always problematic, but it’s especially so at a time when liberal and conservative judges often have very different views on the value of faith and what should win out when religious freedom is in conflict with other rights.
“As long as we don’t have a common baseline for how important religion is compared to other things, we’re going to have inconsistent opinions” from the legal system, Movsesian said. And with inconsistent opinions comes political and social strife.
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!
Next week, along with the Fletcher Initiative on Religion, Law, and Diplomacy at Tufts, the Centre for Religion and Culture at Oxford, and the Armenian Studies Program at Fresno State, the Center will co-sponsor a webinar on cultural property in law and diplomacy. The event will bring together a cross-disciplinary group of scholar-practitioners to discuss the challenges of and opportunities for preserving the rights of access to places of worship for religious groups in cases of contested spaces and in diverse conditions of active and non-active conflict. Speakers will include Narine Ghazaryan (Nottingham), Evanghelos Kyriakides (Kent), Peter Petkoff (Oxford), and Michalyn Steele (BYU). Center Co-Director Mark Movsesian will moderate, along with Sergio La Porta (Cal State-Fresno) and Elizabeth Prodromou (Tufts).
The webinar will take place on Thursday, October 14 at 12 pm EST. Posts from the participants will appear subsequently here on the Forum. Hope you can join us! For further information and a link to join the event, please see below:
Here are some important law-and-religion news stories from around the web:
North Carolina Governor Roy Cooper vetoedHB 453, which banned abortions unless the physician previously determined that the procedure was not being sought because of the race or sex of the fetus or because the fetus has Down Syndrome.
Members of the clergy and others engaged in religious-oriented work may now qualify for the Public Service Loan Forgiveness program, after religious-oriented work was specifically excluded for over a decade.
Ohio Governor Mike DeWine approved vital conscience protections for doctors, nurses, and other medical providers, ensuring that medical professionals cannot be forced to participate in healthcare services that violate their consciences.
Kentucky Right to Life and Louisville nonprofit Sisters for Life filed for a temporary injunction against the city of Louisville Metro Council’s 10-foot “buffer zone” ordinance, which prevents sidewalk counseling within 10 feet of health care facilities.
Britain’s Methodist Church announced that it will now allow same-sex couples to get married on its premises. Ministers who oppose the change will not be forced to carry out same-sex marriages.
Here are some important law-and-religion news stories from around the web:
A petition for certiorari was filed with the U.S. Supreme Court in Shurtleff v. City of Boston, in which the First Circuit upheld Boston’s refusal to allow an organization to raise its “Christian flag” on one of the City Hall Plaza flag poles at an event that would feature short speeches by local clergy.
Texas Governor Greg Abbott signed HB 525, which prohibits the state from restricting activities of religious organizations during a state of emergency.
Suit was filed in a Mississippi federal district court by atheist and secular humanist plaintiffs challenging the constitutionality of the Mississippi state seal and standard license plate, which carry the motto, “In God We Trust.”
A complaint was filed with the EEOC on behalf of two employees at Stanford University’s Counseling & Psychological Services division charging that a hostile work environment has been created for Jewish employees.
President Emmanuel Macron submitted a bill to Parliament, called the Law Reinforcing Respect of the Principles of the Republic, that would empower the government to permanently close houses of worship and dissolve religious organizations, without a court order, if it finds that any of their members are provoking violence or inciting hatred.
A British High Court Family Division Judge refused the request by Muslim parents for an order to require their son’s guardians to have their 21-month old son circumcised.
For interested readers, I have an essay at First Things today on the Supreme Court’s decision last week in the Catholic adoption services case, Fulton v. City of Philadelphia. I argue that the decision represents a victory for religious freedom–though how much of a victory depends on how the Court interprets the case in the future. Here’s an excerpt:
Fulton is surely a victory for religious freedom. In fact, if the Court means what it says, the case is a major victory. True, the chief justice’s opinion avoids a definitive resolution of the conflict between LGBT rights and religious freedom—which probably explains how the chief captured the votes of the Court’s progressives, Breyer, Sotomayor, and Kagan. And true, Smith remains on the books, a result that Justice Alito, joined by Justices Thomas and Gorsuch, lamented in a separate concurrence.
But if it is true, as Fulton suggests, that even a theoretical possibility of an exception triggers strict scrutiny, Smith does not pose much of a limitation. Moreover, if the Court is serious about strict scrutiny—that the mere possibility of an exception means that the state lacks a compelling interest in applying its rule to any particular litigant—it is hard to envision a religious claimant ever losing one of these cases in future.
Nonetheless, it would be wise for religiously affiliated adoption agencies and other potential claimants to wait and see what develops before celebrating. The Court’s religion clause jurisprudence is notoriously unpredictable, and the justices may not stick to Fulton’s reasoning in the future. Moreover, the fact-specific nature of the ruling means that the Court can easily distinguish Fulton in subsequent litigation if it wishes to do so.
The University of Messina and LAWS-MDPI are co-sponsoring a seminar on “The Crisis of Religious Freedom in the Age of COVID-19 Pandemic.” The seminar will be held on May 28th, at 4:00 pm Rome time on Microsoft Teams.
Please see the attached conference flyer below for the Microsoft Teams information and a list of speakers.
In this episode, we interview Italian political scientist Lorenzo Castellani about his new book, “The Gear of Power” (L’Ingranaggio del Potere), which explores the rise of the “technocacy”–a new aristocracy, based on technical expertise, that increasingly dominates politics in the West. We discuss how claims of neutral expertise can mask underlying (and contested) moral commitments, and how the rise of the technocracy has provoked a populist backlash in Europe and America, including with respect to public-health restrictions on worship during the Covid pandemic. Listen in!