Category Archives: CLR News

Movsesian Review of “Heirs to Forgotten Kingdoms”

The Library of Law and Liberty has posted my review of Gerard Russell’s Heirs to Forgotten Kingdoms, a new book on Christians and other religious minorities in the Middle East. Russell describes the history and present circumstances of these groups, including their struggle to emigrate and find new homes in places like the United States:

Will these communities survive in their new environments? Russell hopes so. He describes some touching examples of endurance, like the time he heard a clerk speaking Aramaic in a supermarket in suburban Detroit. But he wonders how long it can last. For all its great achievements, America has a way of destroying traditional identities, and it’s difficult to maintain one’s distinctive customs for very long. He wonders whether escape to the West isn’t “a back-loaded contract for immigrant communities—get the benefit of prosperity now, pay the loss of identity later.” Still, it beats annihilation, which is what threatens these groups at home.

You can read the whole review here.

DeGirolami at University of San Diego Law School Conference on Free Exercise

I’m here in lovely and warm San Diego (Mark went east and I went west) attending this conference organized by Larry Alexander and Steve Smith’s impressive Institute for Law and Religion at the University of San Diego Law School. Here is the conference description:

Hosanna-Tabor and/or Employment Division v. Smith?

The Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran School v. EEOC raised crucial questions. Was the decision reconcilable with the doctrine articulated in Employment Division v. Smith? If so, how? Did Hosanna-Tabor represent a passing anomaly or a major new direction in the constitutional jurisprudence of religious freedom? Such questions are still very much with us, and they can be addressed both normatively and descriptively and from a variety of standpoints: conventional legal analysis, history, political science, or political theory. This conference will consider such questions and their significance for the future of religious freedom in this country.

And here’s the abstract for my paper, Free Exercise by Moonlight (more on it by and by):

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate. Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its rhetorical hostility to religious accommodation—its admonitions about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself”—has ironically become more apt as a description of the multiplying number of secular interests deemed legally cognizable than of religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories that expound on the legally cognizable harms—dignitary and otherwise—to third parties that result from religious accommodation. These theories both reflect the enlarged ambit of state authority and defend novel understandings of the limits of religious accommodation. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.

CLR Participates in International Moot Court in Venice

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Posing a Question in Venice

As regular readers know, I’ve spent this week at a terrific new program at the Fondazione Marcianum in Venice, an international moot court competition on law and religion. The Marcianum gathered law student teams from the US and Europe to argue a hypothetical case before two courts, the European Court of Human Rights and the US Supreme Court. Along with Notre Dame’s Bill Kelley and Judge (and CLR Board member) Richard Sullivan of the SDNY, I served as a judge on the American court. That’s us, in action, above. Mark Hill of Cardiff University, Renata Uitz of Central European University, and Louis-Leon Christians of Catholic University of Louvain made up the European side. Both courts were ably assisted by PhD students from the Marcianum, who served as our shadow clerks, helping us with research and the development of our ideas.

The case was a very topical one. A private, family owned firm had dismissed an employee for making a negative comment about creationism, in violation of the business’s code of conduct, which prohibited anti-religious statements. In the European version, the domestic courts ruled in favor of the firm, and the employee brought a claim under Article 9 of the European Convention on Human Rights. In the American version, the employee sued for employment discrimination, arguing that he had been dismissed on account of his religious views; the employer maintained that, even if Title VII applied, RFRA allowed for an accommodation in these circumstances.

Lots of issues here, and the student teams did a remarkable job addressing them. Special credit goes to the two Italian teams, from the Universities of Milan and Macerata,who had to learn an entirely new legal system and argue in a foreign language. In the end, our panel gave the 500 euro award for best team to the entrants from Emory Law School. They did their school, and especially Emory’s Center for the Study of Law and Religion, proud. On the European side, the award went to the team from Inner Temple.

This was an absolutely wonderful event. It was a lot of work for the students and the judges (not that I’m complaining!), but extremely valuable and tremendous fun. I imagine the most valuable aspect, for the students, was learning how another legal system would handle these issues. The Americans were struck by the argument style in the European Court — 30 minutes of presentation followed by five minutes to answer questions from the bench — and the Europeans were surprised at the more assertive, freewheeling style of argument in an American court. But they adjusted very well.

I hope the Marcianum continues this event. Law and religion has gone global, and comparative law is an increasingly important component of a legal education on both sides of the Atlantic. I’ll write more when I return to NY, but, for now, a very warm thank you to the Marcianum for hosting this event, and especially to Professor Andrea Pin, who invited me and had a major role in the entire enterprise. And thanks to the readers of our blog who stopped by to say hello!

Movsesian at International Law & Religion Moot Court in Venice Next Week

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Home of the Marcianum in Venice

Next week, I’ll be in Venice for a new, three-day international law-and-religion moot court competition. Hosted by a research institute, the Fondazione Studium Generale Marcianum, the competition brings together law students from the US and Europe to argue a case on religious accommodation. I’ll be one of the American judges, along with Judge Richard Sullivan of the SDNY (and one of CLR’s Board members) and Professor William Kelley of Notre Dame Law School.

The organizers of the competition have come up with an interesting new approach. Two noted scholars, Silvio Ferrari of the University of Milan and Brett Scharffs of BYU, will offer an overview of the issues for the audience, and then the student teams will argue the case before two moot courts, one simulating the American Supreme Court and the other simulating the European Court of Human Rights. (The European judges are Louis-Leon Christians of the Catholic University of Louvain, Mark Hill of Cardiff University, and Renata Uitz of Central European University Budapest.) On the final day of the competition, each court will render a judgment and announce the winning team.

The Marcianum”s approach to the competition highlights the fact that law and religion issues have gone international. And it introduces students, especially American students, to the comparative legal method. It should be a wonderful learning experience and a lot of fun, and I’m grateful to the organizers, especially Professor Andrea Pin of the University of Padua, for inviting me. Any of our readers at the competition, please stop by and say hello. I’ll try to blog from Venice if occasion allows. Not sure you can blog from a gondola, though.

Podcast on Mideast Christians and ISIS

ep26For those who are interested, I sat for an interview yesterday on Mideast Christians and ISIS, part of a podcast series produced by Fr. Nareg Terterian of St. Sarkis Armenian Apostolic Church in Douglaston, New York. Fr. Nareg, a St. John’s grad, did a wonderful job and I appreciated the opportunity. You can listen to the interview here; my segment starts around the 10:00 minute mark and runs for 30 minutes.

St. John’s Hosts Panel on Mideast Christians

L-R: Michael LaCivita, Mark Wasef, MLM

This past Wednesday, the Center for Law and Religion co-sponsored a panel, “Threat to Justice: Middle Eastern Christians and the ISIS Crisis,” at the St. John’s Law School campus in Queens. The Catholic Law Students Association, and, especially, this year’s energetic president, Eugene Ubawike ’15, took the lead in organizing the event, which was also endorsed by the Law School’s Center for International and Comparative Law. I served as moderator.

Eugene introduced the panel by referring to the martyrdom of 21 Coptic Christians at the hands of ISIS operatives in Libya last weekend. The martyrdom of Christians is not something one reads about only in history books, he said–persecution is happening right now. In my introduction, I followed up on Eugene’s comments by reminding the audience of what Pope Francis said at our conference in Rome this past summer: there are more Christian martyrs today than in the first centuries of the Church, since before the time of Constantine, 1700 years ago.

Michael LaCivita, the Chief Communications Officer of the Catholic Near East Welfare Association, explained the mission of his organization and helpfully situated the discussion by giving a brief history of the Christians of the Middle East. Mark Wasef, an attorney and member of the board of United for a New Egypt, provided an overview of the situation Christians face in contemporary Egypt. He spoke movingly of the troubles Copts have faced in recent years, but also of the possibility of peaceful relations between Christians and Muslims, and his hopes for the future. A robust question and answer session touched on topics like the dhimma, the promise of the Sisi government in Egypt, Mideast Christians in American politics, and the legacy of the Crusades.

This is not the first panel on Mideast Christians that CLR has sponsored at the Law School, and, as at the event we sponsored in October 2010, turnout on Wednesday night was encouraging, a sign that the Law School community takes this issue seriously. Congratulations to Eugene and the Catholic Law Students Association for an important event in the life of St. John’s, and many thanks to our panelists.

Movsesian at Federal Bar Council

L-R: Noel Francisco, MLM, Judge Brian Cogan, David Schaefer

On Monday, I participated in a panel discussion, “The Evolution and Implications of the Religious Freedom Restoration Act,” at the Federal Bar Council’s annual Winter Bench & Bar Conference. (Honor compels me to reveal that the conference took place at the Casa de Campo resort in the Dominican Republic, where the February weather is much nicer than in Queens. But I returned to Queens right after my panel to teach my classes. The sacrifices scholars make). Founded in 1932, the Council is an organization of lawyers who practice in federal courts within the Second Circuit. The winter conference attracts not only lawyers, but also judges–Supreme Court Justice Samuel Alito is on the program this year–and discussions are substantive and enlightening.

My panel concerned a topic we’ve covered often here at the Forum, namely, religious accommodations under RFRA. I gave a twenty-minute overview of the topic, addressing the history of religious accommodations in American law, RFRA itself, the Court’s decisions last term in Hobby Lobby  and Wheaton College, and their immediate aftermath. Moderator Judge Brian Cogan (EDNY) then led the discussion, which included a mock argument on a hypothetical case involving the federal Family and Medical Leave Act–attorneys Steven Edwards (Hogan Lovells) and Steven Hyman (McLaughlin & Stern) took opposite sides–and interventions by Noel Francisco (Jones Day) and David Schaefer (Brenner Saltzman & Wallman). We wrapped up with audience Q&A.

I wasn’t the only member of the Center family to participate in the conference. Board member Mary Kay Vyskocil (Simpson Thacher) worked hard to coordinate the RFRA panel, though she unfortunately could not attend the conference, and Board member Judge Richard Sullivan (SDNY) will appear on a panel later this week.

Thanks to the Council for inviting me and to my fellow panelists for an engaging discussion!

 

Panel: “Threat to Justice: Middle Eastern Christians and the ISIS Crisis” (St. John’s, Feb. 18)

On February 18 at 5 p.m., CLR will co-host a panel, along with the St. John’s Catholic Law Students Association, on a very timely topic: “Threat to Justice: Middle Eastern Christians and the ISIS Crisis.”

The discussion will be moderated by CLR Director Mark Movsesian. Speakers will include Michael LaCivita (Catholic Near East Welfare Association), Edward Clancy (Aid to the Church in Need), and Mark Wasef (United for a New Egpyt).

For more information, please click here.

Movsesian at American Historical Association Meeting

For readers attending the American Historical Association’s Annual Meeting in New York this weekend, I’ll be on a Sunday panel, “Contemporary Orthodox Christianity and Human Rights.” The panel, sponsored by the American Society of Church History, is chaired by Penn’s Sally Gordon, who participated in our Joint Colloquium this past spring. Details are here. Please stop by and say hello!

CLR Board Member Vyskocil on Short List for Court of Appeals

vyskocilI’m delighted to announce that Mary Kay Vyskocil (left), a member of the Center’s advisory board, has been named to the short list of candidates for an upcoming vacancy on New York’s Court of Appeals. The New York State Commission on Judicial Nomination selected her, along with six other candidates, for inclusion on the short list; Governor Andrew Cuomo must choose his nominee to high court from among these candidates. Vyskocil is a graduate of St. John’s Law and a partner at Simpson Thacher. Congratulations!