Professor Scharffs at the Law and Religion Colloquium
This week, the Center hosted BYU Law School Professor Brett Scharffs in our biannual Colloquium on Law and Religion (above). Brett, who is BYU’s associate dean and the associate director of its magnificent International Center for Law and Religion Studies, presented his draft, “Four Models of Public Discourse and their Implications for the Public Sphere.” Brett has been a great friend of the Center for several years and we were delighted to have him with us. Next up: the University of Illinois’s Robin Fretwell Wilson (February 16).
The Lumen Christi Institute will host a panel, “The Present and Future of Religious Freedom,” on December 10 in Chicago:
Recent controversy over the HHS contraceptive mandate and the participation of faith-based organizations in federal grant programs has raised questions about religious freedom in the American legal and political systems. This discussion will consider the perceived conflict between civil rights and religious freedom and the roles of Congress, the judiciary, and administrative agencies for how religious freedom will be understood, applied, and protected in the future.
The panelists are Noel Francisco of Jones Day and Michael Moreland of Villanova Law School. Details are here.
A reminder that “Under Caesar’s Sword,” a joint research project of the Center for Civil and Human Rights at Notre Dame and the Berkeley Center at Georgetown, will hold a conference in Rome next month on the Christian responses to persecution:
The main objective of the conference is to introduce the results of the world’s first systematic global investigation into the responses of Christian communities to the violation of their religious freedom. The scope of Under Caesar’s Sword extends to some 100 beleaguered Christian communities in around 30 countries….
The conference will feature plenary speakers from among the world’s most respected advocates of religious freedom. It will offer a lively discussion of the global persecution of Christians among church leaders, government officials, scholars, human rights activists, representatives of world religions, students, and the interested public. Finally, the conference will shed light on the experiences of millions of Christians worldwide whose religious freedom is severely violated.
Details about the conference, co-sponsored by the Community of Sant’Egidio in Rome, are here.
L-R: DeGirolami, Sullivan, Movsesian
Thanks again to Rick Garnett, Phillip Munoz, and the hardworking staff at the Notre Dame Law Review for hosting us at the conference on religious liberty last week. It was a wonderful event — substantive, friendly, and engaging. We’ll link to the video when it’s available. Papers will eventually appear in a forthcoming issue of the Law Review. Meanwhile, here’s a shot of three happy CLR types, Marc DeGirolami, Judge Richard Sullivan, and me, just before our panel on religion in the modern world.
The second panel kicks off with Phillip Muñoz, whose talk concerns the limits of state power with respect to religion as a historical matter in the text of state constitutions. Phillip’s key point is that there are some features of religious freedom that are categorically outside state power. There are some interests that the state can never pursue. Sherbert and RFRA are mechanisms through which the government can control religion. Phillip focuses on state constitutions because these documents show that the founders had a natural rights view of religious freedom and the unalienability of certain rights, over which the government has no jurisdiction. These rights were categorical limits on government power. But the rights have natural limits–to wit, the natural rights of others.
Brett Scharffs spoke next. Brett offered an interesting account of the different types of restrictions on religious freedom across the world. 39% of the world’s countries have high or very high government restrictions, and these include countries with high populations. Countries on the Asian continent have particularly high representation. There are also statistics for social hostility with respect to religion, which seem to correlate with countries with a high percentage dominant religious group. Catholic majority countries tend to score low as to both measures. His conclusions: religion is a limitation on religious freedom. Second, it is important therefore to look for justifications for religious freedom within those traditions.
Anna Su spoke last. Her presentation was historical whose points were that the US approach was an important, at first, contrast and then, later, a model for the Catholic Church. She also noted that John Courtney Murray’s contributions were prefigured by the Americanist controversy in the 19th century. Religious freedom may be less threatened in secular countries like the US, but that does not mean that religious freedom is less fragile in secular countries than in those with religious bases.
I’m here with Mark at the Notre Dame conference and thought I would live blog some of the panels today.
The first panel deals with the First Amendment proper. After a wonderful introduction by Judge Sullivan, Tom Berg spoke first. His primary theme concerned the role of religious organizations in the broader society, particularly those organizations that span the public and private realms. Critics of exemptions say that once a religious organization enters the public realm (by hiring employees who may not share the faith), no exemptions are permissible. Tom’s focus is on what he calls “partly acculturated” organizations–organizations that are deeply involved in providing social services and in performing civic functions but that do not share all of the culture’s norms. He argued that such organizations should receive exemptions both for religious equality reasons and for reasons of the social capital contributed by such groups. As to the latter, the point is not simply about the benefits to society but about the core reasons for protecting religious freedom at all.
Rick Garnett spoke next. He focused on an under appreciated feature of Dignitatis Humanae, the idea that government has a role in creating, proactively, the conditions necessary for the full exercise of religious freedom. As to the second, is this consistent with American constitutionalism? There is at least some tension. But Rick argued that the American account of religious freedom need not be neutral if neutrality demands that the state not regard religion “as a good thing.” That is, there is an important space between establishment and the state’s proper, secular, care for religion. That understanding is reflected in DH. Care, as Rick understands it, might include the building and maintaining of infrastructural spaces within which religious institutions can thrive.
Paul Horwitz spoke third. His theme was a liberal argument for accommodation as to illiberal groups. He began by surveying the usual accommodationist and anti-accommodationist claims. His own view he described as a liberal pluralist perspective. Accommodation is valuable because the state is obliged to act as if there may be important and valuable ideas inaccessible to liberalism. But it is also valuable because not accommodating illiberal groups will ostracize them entirely from society, isolated entirely. This would be a loss for them and for the liberal society. Accommodation “keeps those groups in and not out.”
Chris Lund spoke last. His talk concerned exemptions as well. He argued that without exemptions, many religions could not survive in the modern age. He addressed the claim that certain sorts of exemptions violate the Establishment Clause, those that impose third party harms. There has to be some principle of third party harms and cost, but the difficult questions concern which sorts of harms count. And they are quite difficult. His current factors include: (1) severity of the harm, the problem of course being describing what this means. (2) likelihood of the harm, which is perhaps a bit easier to understand. (3) the religious interest in obtaining the exemption. (4) the existence of other secular exemptions. All of this will require balancing, something the Court is not especially willing to do.
Later this week, Marc DeGirolami and I will be presenting papers at a symposium at Notre Dame University. The symposium, sponsored by the Notre Dame Law Review, commemorates the 50th anniversary of Dignitatis Humanae, Vatican II’s declaration on religious liberty:
The Symposium will begin with an address from Bishop Daniel E. Flores on Thursday, November 5. Bishop Flores currently serves as the Bishop of Brownsville, Texas.
The Symposium panelists will present their works on Friday, November 6. Panelists include Professors Thomas Berg of the University of St. Thomas School of Law, Paul Horwitz of the University of Alabama School of Law, Christopher Lund of Wayne State University Law School, Mark Movsesian and Marc DeGirolami of St. John’s University School of Law, Brett Scharffs of Brigham Young University Law School, Steven Smith of the University of San Diego School of Law, Anna Su of the University of Toronto Faculty of Law, and Richard Garnett and Phillip Muñoz of Notre Dame Law School. The panels will be moderated by Judge Richard Sullivan of the Southern District of New York.
The Symposium will feature a keynote address from John H. Garvey, President of The Catholic University of America.
Papers will appear in a forthcoming issue of the Notre Dame Law Review. Details about the symposium are here. CLR Forum readers, please stop by and say hello!
At the Center’s Conference on International Religious Freedom in Rome, at which Pope Francis gave the keynote address. In addition to His Holiness, that’s Center Director Mark Movsesian, Associate Director Marc DeGirolami, and St. John’s Law School Dean Michael Simons (L-R).
The Center for Law and Religion at St. John’s Law School is pleased to announce its third biennial Colloquium in Law and Religion, scheduled for Spring 2016. This seminar invites leading law and religion scholars to make presentations to a small audience of students and faculty.
The following speakers have confirmed:
February 1: Brett G. Scharffs (Brigham Young University School of Law)
February 16: Robin Fretwell Wilson (University of Illinois School of Law)
February 29: Robert P. George (Princeton University)
March 14: Mark Tushnet (Harvard Law School)
April 4: Justice Samuel A. Alito (United States Supreme Court)
April 18: Elizabeth H. Prodromou (Boston University & Tufts University Fletcher School of Diplomacy)
Topics will be announced at a future date.
For more information or if you would like to attend the sessions, please contact the colloquium’s organizers, Marc DeGirolami (firstname.lastname@example.org) and Mark Movsesian (email@example.com). For information about past colloquia, please click here, Spring 2012, and here, Spring 2014 (hosted with Villanova Law School).
Mark and I are just back from the Libertas Conference at Villanova Law School. It was an extremely edifying period of thought, reflection, and fellowship with a wonderful group of lawyers, political theorists, philosophers, historians, and journalists, including Steve Smith, Damon Linker, Christopher Tollefsen, Elizabeth and David Corey, Tuan Samahon, and Gerald Russello, among many others. Rick Garnett, Zak Calo, and I were fortunate enough to moderate the sessions over a period of three days.
The sessions really broke down into four general categories: (1) genealogical accounts of church and state in modernity (including readings by Brad Gregory and Mark Lilla, as well as by Steve Smith); (2) historical studies of the specifically English and American experience of church and state (including readings by Stuart Banner and Michael McConnell), (3) comments on the projects of cultural Christianity and secularism (John Courtney Murray, Robert Louis Wilken, and Pope Benedict XVI were on the agenda); and (4) diagnoses of and prognoses for religious freedom in the United States (here some of the readings were decidedly inferior as they included some of my recent work, but also much better material by Rick Garnett and Paul Horwitz).
The conference was organized by Michael Moreland with his usual grace, generosity, and aplomb. The participants’ comments and insights will influence my own thinking and writing for a while, in ways I hope to note by and by. But here’s one initial thought having to do with scholarly method. There are of course many different ways to make scholarly contributions in law: argument in the service of changing doctrine, synthesis of a body of law to arrive at a new insight, normative pleas for turns or returns to various positions having assertedly desirable political ramifications, studies of empirical states of affairs, and so on. But my own view–helped along and shaped by the participants at the conference (as well as by posts like this one)–is that we are at the beginning of the flowering of an interesting period of long-view, retrospective, critical diagnostic scholarship in law and religion and constitutional law more broadly. Not everybody will be interested in this sort of approach, of course. Others in the field have different projects and different objectives. But at least for me, this is an invigorating thought.