I’ll be at the Hertog Foundation in Washington, D.C., next weekend, which runs programs of study in political science, political history, international studies, and law. I’ll be discussing religious freedom as part of course run by my friend Adam White on “Landmark Supreme Court Cases.”
Look forward to being there.
L-R: Movsesian, Vyskocil, Sullivan
Congratulations to our board member, Mary Kay Vyskocil ’83, who yesterday took her oath as the newest judge on the US Bankruptcy Court for the Southern District of New York. Vyskocil is now the second federal judge to serve on CLR’s board, along with US District Judge Richard Sullivan. That’s the three of us celebrating yesterday, at the reception following Vyskocil’s investiture at the Bankruptcy Court in Lower Manhattan.
L-R: Movsesian, Reno
Thanks to Rusty Reno and First Things Magazine for hosting a dinner seminar last night on my new paper, Of Human Dignities. (That’s a picture of me and Rusty at the event, listening in rapt attention to one of the many insightful interventions). I greatly enjoyed the discussion and am grateful to all the participants for their careful readings of the paper. For those who would like to download a copy of the paper, which appears in the current edition of the Notre Dame Law Review, please click here.
The University of Illinois Law Review has posted a set of essays on the issue of substantial burdens. These essays were meant to coincide with the Supreme Court’s Zubik decision, and they did, though the Court did not really oblige in entirely avoiding the substantial burden issue. So much the better. Kudos to Michael Helfand in particular for assembling such a varied little troop. I was pleased to be among them.
My essay, Substantial Burdens Imply Central Beliefs, takes the Brennan-esque view that any society that is amenable to religious accommodation is going to have to involve itself to some extent in evaluating religious claims, brought by religious claimants, that the law imposes upon religious exercise. “Religious” is the key term here. In the end, and once we have taken on the business of “religious” accommodation, there is no avoiding a good bit of church-state entanglement. To render the substantial burden inquiry coherent, we need some concrete, but generous, idea of what religion is. Here the essay briefly considers the systematic nature of religion, and the sense in which courts can only evaluate whether a law imposes a “substantial burden” on religious exercise by recourse to a background of interlocking beliefs and exercise of which the exercise at issue forms one part. Efforts to avoid this type of entanglement, and to segregate civil or secular burdens from religious burdens, are infeasible and, more importantly, miss the very point of religious accommodation–an official acknowledgment of specifically religious reasons (not personal reasons, or financial reasons, or emotional reasons, or some other kind of reasons) for non-compliance with the law. The effort to isolate civil/secular reasons from religious reasons is itself the latest iteration of an old debate in liberal political theory. Here, and with a few examples from the Hobby Lobby case, I argue that it is unsuccessful. It fundamentally misunderstands the religious dimension of the objection. It mistakes a claimant’s money for its principles.
This is the first of two projects I’ve been working on concerning what I am calling the new accommodation skepticism. Over the last few years, religious accommodation has come under fire from those who are largely indifferent, unsympathetic, or hostile to religion–particularly organized religion, and most particularly Christianity. But there is a new, emerging skepticism from other quarters–from those who are sympathetic to religion and may themselves even be religious believers. Such skepticism is not opposition to accommodation full stop. But it does observe some of the ways in which the regime of religious accommodation prevalent since the 1960s has had profound, and profoundly non-neutral, and indeed often profoundly regrettable, effects on the American legal conception of religion, a conception that is achieving ever-greater salience in the so-called “Rise of the Nones” and other contemporary religious phenomena.
The Center for Law and Religion’s Year-End Message for 2015-2016 is now available on our website. Among the highlights:
- A major grant from the Lynde and Harry Bradley Foundation to support the start of of the Tradition Project, a new research initiative that will explore the value of tradition for contemporary citizens and the relationship of tradition and change in today’s world
- The third biennial Colloquium in Law and Religion, featuring Supreme Court Justice Samuel Alito, as well as Professors Robert George (Princeton), Brett Scharffs (BYU), Mark Tushnet (Harvard), and Robin Wilson (Illinois).
- A new, annual Conversation on current law and religion cases at the Supreme Court, timed to coincide with the start of the new Court term each October
There’s much more in the report, including faculty scholarship and presentations, and a new Global Law Fellows program for foreign PhD students. Please take a look and let us know what you think!
For those who are interested, a draft version of my article, “Of Human Dignities,” is now available on SSRN. The article will appear in a forthcoming symposium issue of the Notre Dame Law Review. Here’s the abstract:
This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae, the Catholic Church’s declaration on religious freedom, explores the conception of human dignity in international human rights law. I argue that, notwithstanding a surface consensus, no generally accepted conception of human dignity exists in contemporary human rights law. Radically different understandings compete against one another and prevent agreement on crucial issues. For example, the Catholic Church and other religious bodies favor objective understandings that tie dignity to external factors beyond personal choice. By contrast, many secular human rights advocates favor subjective definitions that ground dignity in individual will. These conceptions clash, most notably in contemporary debates on traditional values resolutions and same-sex marriage. Similarly, individualist conceptions of dignity, familiar to most of us in the West, compete with corporate conceptions that emphasize the dignity of traditional religions — a clash that plays out in the context of the proselytism and the right to convert. Rather than try to forge agreement on a universal definition of dignity, I argue, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it.
You can download the paper (more than once!) here.
Mark and I were delighted and honored to host Justice Samuel Alito at the Center for Law and Religion’s colloquium in law and religion yesterday. Justice Alito discussed the Court’s decisions, and his opinions, in Hobby Lobby v. Burwell; Town of Greece v. Galloway; Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC; CLS v. Martinez; Salazar v. Buono; and Summum v. Pleasant Grove, as well as his dissent from denial of certiorari in Ben-Levi v. Brown and two free exercise decisions he authored as a Third Circuit judge, Fraternal Order of Police v. City of Newark and Blackhawk v. Pennsylvania.
We had a lovely day today as well, as Justice Alito discussed several important free speech cases in which he dissented with my constitutional law class–US v. Stevens, Snyder v. Phelps, and US v. Alvarez. It was a true pleasure to have him. A few pictures below.
Our guest in our law and religion colloquium this week was Harvard’s Mark Tushnet (above), who presented a provocative paper opposing religious accommodations because of the harm they do to religious believers. As Marc points out over at Mirror of Justice (Why are so many law and religion scholars named Mark, by the way? Can it be a mere coincidence?), last month we hosted Princeton’s Robert George, who has a rather different point of view on the question. A powerful, one-two punch!
I’ve posted a little reflection on Professor Nicholas Wolterstorff’s recent book, The Mighty and the Almighty: An Essay in Political Theology, which is part of a symposium to be published in the Journal of Analytic Theology. Here’s the abstract:
This short comment explores Nicholas Wolterstorff’s claims about expressivism and retributivism as justifications for the state’s punishment of criminal offenders in his book, “The Mighty and the Almighty.” It asks two questions about his account of expressivism and retributivism respectively, focusing on his interpretation of the reasons for punishment given by St. Paul in his Epistle to the Romans.
We were delighted to welcome Princeton University’s Robert P. George yesterday at our law and religion colloquium. Professor George, who serves as chairman of the United States Commission on International Religious Freedom, presented his paper, “Religious Liberty and the Human Good,” a very interesting philosophical exploration of the meaning of religion.