Thanks to the Loyola University Chicago Law Journal

Just a note to thank the organizers of last week’s conference on religious liberty at the Loyola University Chicago Law Journal for hosting me. The event brought together a diverse group of scholars with truly differing points of view–something for which the organizers deserve a lot of praise. I presented a paper on the 50th anniversary this year of Wisconsin v. Yoder and received some very helpful comments. I look forward to seeing my essay in print in a forthcoming symposium edition of the Law Journal, and to reading the other participants’ papers!

Upcoming Symposium on Religious Liberty at Loyola University Chicago

A programming note: I’m looking forward to participating in this upcoming symposium on religious liberty in Chicago later this spring. The editors of the Loyola University Chicago Law Journal have put together a great program and I’m honored to be among the contributors. Details below:

Around the Web

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

At SCOTUS, a Compromise on Religious Liberty

At the First Things site this week, I have an essay on last term’s Religion Clause cases at the Supreme Court. I argue that the cases reflect the Court’s attempt to reach a modus vivendi in the culture wars between progressives and the traditionally religious on issues of sexuality, gender, and equality. Taken together, the cases suggest the Court is prepared to acquiesce to the dominant progressive consensus while allowing religious institutions some space to dissent. 

Here’s an excerpt:

Bostock suggests the Justices, including conservatives like Gorsuch and Roberts, are prepared to accede to the progressive view of sexuality and gender. But the Court’s hints about lingering free exercise issues imply it will afford religious institutions space to dissent. Other decisions from last Term confirm this reading. Take Espinoza v. Montana Department of Revenue, the Blaine Amendment case. The Court held, 5-4, that the Montana Constitution’s Blaine Amendment, which prohibits state funding for private religious schools, violated the First Amendment’s Free Exercise Clause. A state may not exclude schools from a funding program simply because of the schools’ religious “status” or “character,” Chief Justice Roberts wrote. “A State need not subsidize private education,” he explained. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Espinoza is a case about equality, but also has implications for debates surrounding sexuality and gender. It’s no secret that many, if not most, private religious schools hold to traditional understandings of sexuality and gender. In fact, parents often choose to send their children to religious schools precisely to avoid the progressivism that pervades public education. Allowing religious schools to receive public assistance on an equal basis with secular schools could make it easier for the traditionally religious to pass on their values to the next generation. 

The Court’s holding that in principle the state must afford benefits to private religious schools on an equal basis with private secular schools is thus important for the traditionally religious. Still, the Court’s focus on a school’s religious “status” raises some questions. Even if discrimination on the basis of a school’s religious affiliation is illegal, it remains unclear, under the Court’s decision, whether a state may restrict funding because the school’s program is at odds with progressive understandings of equality. The Espinoza Court left that question open, though it hinted that discrimination based on a school’s religious “use” of state funds also could be constitutionally problematic.  

You can read the full essay here.

Church Closings during COVID: The State of Play

At the Law and Liberty site this morning, I have an essay on current litigation regarding church closings during the coronavirus epidemic. I explain why courts have reached different results, and ask why some churches, rather than others, are bringing the lawsuits. Here’s an excerpt:

So far, the lawsuits have achieved mixed results. Federal district courts in California and New Mexico, for example, have rejected challenges and ruled that the bans in those states are constitutional. Federal district courts in Kansas and Kentucky, by contrast, have ruled that the bans in those states do violate the First Amendment. This past weekend, the Sixth Circuit agreed, holding that Kentucky’s ban on church services violates the Free Exercise Clause.

These cases are very fact-specific and turn on the specific language of the bans in question. But there is another, more important reason for the courts’ division. The law with respect to religious exemptions is quite indeterminate. Under the Supreme Court’s landmark ruling in Employment Division v. Smith (1990), no right to an exemption exists where a law is neutral and generally applicable, that is, where the law does not target religion for disfavored treatment. If a ban on public gatherings qualifies as a neutral and generally applicable law, a church cannot prevail.

If a law targets religion for disfavored treatment, by contrast, a church may have a right to a religious exemption—but not where the state can show that it has a compelling reason for enforcing the law against the church and has chosen the least restrictive means of doing so. As many have noted, this form of “strict scrutiny” essentially operates as a balancing test that requires judges to weigh the seriousness of the burden on religious exercise against the significance of the goal the state is trying to reach. If the goal is sufficiently important, the law will stand, regardless of the burden on religious exercise.

Both these questions—whether a law is generally applicable and whether the burdens of a ban outweigh its benefits—leave much to the discretion of individual judges….

You can read the whole essay here.

Call for Papers: Student Writing Competition on Religious Liberty

For law students finishing up notes and term papers on religious liberty, here is a great way to publicize your work and win a prize to boot. The International Center for Law and Religion Studies at BYU is running the eighth annual Religious Liberty Student Writing Competition. The top prize is a $4000 cash award. Here are the details:

Purpose: To promote legal and academic studies in the field of religious liberty by law students and students pursuing related graduate studies. Students who have graduated from law school but who are not yet practicing law due to clerkships or other similar pursuits are also invited to submit papers.

Form: Scholarly paper relating to the topic of domestic or international religious liberty, broadly or narrowly construed, consisting of 9,000-13,000 words, including footnotes. Eligible papers must be typed, thoroughly cited and presented in a format suitable for publication, with no additional editing required. Papers must conform to Bluebook requirements and may include footnotes. Papers prepared for academic coursework are permitted.

Submission: All papers must be submitted on or before July 1, 2017. Papers should be submitted by e-mail to papers@ jrclsdc.org in pdf and/or docx formats. The cover email should note the word count of the paper being submitted. A current resume should also be included. You will receive e-mail confirmation of your submission. Questions regarding submission may be directed to papers@jrclsdc.org.

The deadline is July 1. Further information may be found here.

On the Religious Liberty Order

At the First Things site, I have a post on last week’s executive order on religious liberty. I argue that the order doesn’t do very much about religious accommodation, but that doing little may be a strategic choice by the Trump administration. I also argue that weakening the Johnson Amendment, which prohibits tax exempt religious organizations from electioneering, would be a bad thing, and inconsistent with American tradition.

Here’s a sample:

[A]voiding partisan political contests is a longstanding tradition for American churches, and a very beneficial one. In the nineteenth century, Tocqueville observed that Christianity had a powerful influence in American politics; religion was, he famously said, “the first” of our “political institutions.” But Christianity’s influence on politics was an indirect one, and powerful precisely because it was indirect. Churches shaped Americans’ attitudes and morals, and Americans’ attitudes and morals shaped our politics. But churches studiously avoided party contests as such, and clergy “maintained a sort of professional pride in remaining outside of” them. As a result, Tocqueville observed, churches were never mixed up in the public mind with the vicissitudes of electoral campaigns, and maintained people’s confidence and respect.

This practice has served us very well. This is not to say that churches should avoid commenting on public questions, only that churches should refrain from endorsing or opposing particular candidates and parties, and avoid electioneering as such. In fact, I’ve never known a member of the clergy, liberal or conservative, who said he wanted to endorse or oppose a particular candidate from the pulpit. I suspect that, deep down, they all understood that mixing to that extent in partisan contests would interfere with their mission of preaching the Gospel and administering the sacraments. If last week’s order signals a change in our longstanding American tradition, it’s not a change conservatives should celebrate.

You can read the post here.

Panel: “And Justice for All?” (New York, May 16)

On May 16 in New York, the Fordham Center on Religion and Culture will host a panel, “And Justice for All? The Promise of Religious Liberty in a Pluralistic World.” Here are the details from the Fordham events page:

At a time when human rights and human lives are at risk in America and abroad, how can we reconcile conflicting views of how religious beliefs relate to public policy? Is religious freedom a veil for bigotry or an essential protection against sectarian persecution?

Join us as we explore the contentious issue of religious liberty and its intersection with immigration, health care, same-sex marriage, and other issues.

Panelists
Vincent D. Rougeau
Dean, Boston College Law School

Thomas Berg
Professor of Law, St. Thomas University

Carol Keehan
CEO, Catholic Health Association

Asma Uddin
Director of Strategy, Center for Islam and Religious Freedom

Ani Sarkissian
Political Scientist; Author of The Varieties of Religious Repression: Why Governments Restrict Religion

This event is free and open to the public. For further details, click here.

Around the Web

Here are some interesting news stories involving law and religion from the past week:

Lecture: “An (Un)Orthodox View: Religions and Politics in Russia Today” (Apr. 19)

On April 19, the King’s College McGowan Center for Ethics and Social Responsibility, the King’s Public Policy and Research Institute, and the Wyoming Valley Interfaith Council are co-sponsoring a lecture titled “An (Un)Orthodox View: Religions and Politics in Russia Today” given by Catherine Cosman (retired senior policy analyst for the United States Commission on International Religious Freedom) at the William G. McGowan School of Business. A brief description of the event follows:

King's CollegeCatherine Cosman, recently retired senior policy analyst for the United States Commission on International Religious Freedom, will discuss religious liberty in Russian and its impact on foreign policy at 7 p.m. Wednesday, April 19, in the Burke Auditorium at King’s College.

The free public lecture, titled “An (Un)Orthodox View: Religions and Politics in Russia Today,” is co-sponsored by the KING’S McGowan Center for Ethics and Social Responsibility, the King’s Public Policy and Research Institute, and the Wyoming Valley Interfaith Council.

After 70 years of official Soviet atheism, Russia is now home to a great variety of religions. While the Russian Constitution says that the country is a secular state, the religion law preface claims four religions as “traditional”: Orthodox Christianity, Islam, Buddhism, and Judaism. The Russian government, particularly the Kremlin, relies almost solely on the Moscow Patriarchate of the Russian Orthodox Church (MPROC) as its official religious bulwark. Cosman’s talk will examine some of the reasons for the Kremlin’s focus on the Moscow Patriarchate and how this focus both affects other religious communities and plays out in Russian international politics.

Cosman joined the staff of the U.S. Commission on International Religious Freedom in 2003. Her areas of responsibility include the countries of the former Soviet Union and the Organization on Security and Cooperation (OSCE). She previously served on the staff of the U.S. Helsinki Commission as senior analyst on Soviet dissent.

She also worked with emerging independent labor unions for the Free Trade Union Institute, especially in Kazakhstan and Azerbaijan. In Estonia, she was the Senior Expert of the OSCE Mission, focusing on the integration of the Russian minority. She managed the Central Asian and Caucasus grants program at the National Endowment for Democracy and edited “Media Matters” and “(Un)Civil Societies.”

After receiving her bachelor’s degree in history from Grinnell College, Cosman earned a master’s degree and an ABD in Slavic Languages and Literatures from Brown University. She also studied at the Free University of Berlin and the All-Union Institute of Cinematography in Moscow.

The Burke Auditorium is located in the William G. McGowan School of Business on North River Street. Parking will be available in on-campus lots. For more information, please contact Dr. Bernard Prusak, director, McGowan Center for Ethics and Social Responsibility, at (570) 208-5900, ext. 5689.

More information on the lecture can be found here.