Tag Archives: Religious Liberty

More on Yesterday’s Decision in Zubik

Marc has posted a rundown of yesterday’s decision in Zubik v. Burwellthe ACA case. I’d like to add just a few quick observations.

Some commentators, including the New York Times, have decried the result as the inevitable consequence of having an eight-member Court, which prevents the formation of five-person majorities in close cases. If only the Senate had confirmed Merrick Garland, we wouldn’t be in fixes like this. But it’s worth noting that the Court’s opinion yesterday was unanimous. All eight Justices joined it in full. If Merrick Garland had been on the Court, it likely would have been 9-0. In fact, an unsigned, per curiam opinion like yesterday’s traditionally signals that the Court does not see a decision as particularly significant or controversial.

Now, it’s true that Justice Sotomayor, joined by Justice Ginsburg, wrote a separate concurrence. But, in Supreme Court practice, a concurrence signals that the author agrees with the Court’s reasoning and wishes only to offer further support or highlight certain aspects of the case. And that’s what Justice Sotomayor did here. She went out of her way to highlight the fact that the Court was not ruling on the merits of the case. I’m not sure that was entirely necessary; the Court itself expressly said it was not ruling on the merits. But, anyway, her writing separately doesn’t reflect disagreement with the Court’s reasoning.

So the Court does not seem to have been divided at all. Now, it’s possible, as some speculate, that the Court did a quick vote after oral argument, saw that there would be no clear majority on the merits, and reached for a compromise that would preserve the Court’s credibility while allowing further consideration down the road, when the Court is back to nine members. But that’s more than we can know right now, and, at least to me, there seems another, more likely explanation for the Court’s unanimity. The Court determined that the whole dispute may well be unnecessary.

After oral argument and supplementary briefing in March, it became clear to the Court that there might be a way out of the conflict the lower courts had missed. It might be possible for employees to receive coverage for contraceptives without requiring employers to file the so-called “opt out form” — the form to which the petitioners had objected on religious grounds. As the Court explained:

Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

In other words, the parties might be able to reach a settlement that would satisfy everyone. The Supreme Court is not the place to hammer out such a settlement, though, so the Court remanded the dispute to the lower courts, which, it said, were in a position to “allow the parties sufficient time to resolve any outstanding issues between them.” (Hint, hint). In that event, the dispute would be moot–and it is hornbook law that courts, including the Supreme Court, do not decide moot issues. As one commentator observed, what the Court is saying is, “We don’t need to decide this case right now. The parties should be able to work it out for themselves.”

Although the Court did not rule on the merits, it’s hard not to see this as a loss for the Obama Administration. A determination that the dispute may not have been necessary at all is, implicitly, a judgment on the Administration’s strategy in these cases. The Administration has taken a very hard line on the Contraception Mandate, harder than it needed to in order to achieve its stated goal of providing cost-free contraceptive coverage for women. Two terms ago, in Hobby Lobby, the Court ruled that the Administration could reach that goal without requiring for-profit corporations with religious objections to cover contraceptives in their health plans. Now, the Court has suggested the Administration can reach that goal without requiring religious non-profits like the Little Sisters to violate their religious convictions. So why did the Administration take such a hard line? Why didn’t it accommodate the concerns of people with religious objections to the mandate–an extremely small group, it must be conceded–especially as accommodation wouldn’t have changed the ultimate outcome? It’s almost as though the Administration had goals other than women’s health in mind.

Movsesian “Human Dignities” Paper Now on SSRN

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.

 

USCIRF Issues Annual Report

The U.S. Commission on International Religious Freedom (USCIRF) has released its annual report, finding that that religious freedom is under “serious and sustained assault” across the globe. The report, which covers the period from February 1, 2015-February 29, 2016, highlights religious freedom violations in more than 30 countries, including China, Sudan, North Korea, Nigeria, Pakistan, Iraq and Syria. It cites abuses by both state and non-state entities.

ICLARS Conference: “Freedom of/for/from/in Religion: Differing Dimensions of a Common Right?” (Oxford, Sept. 8-11)

The International Consortium for Law and Religion Studies has announced the Fourth ICLARS Conference, to take place in Oxford from September 8-11, 2016. The theme is “Freedom of/for/from/in Religion: Differing Dimensions of a Common Right?” ICLARS has also issued a call for papers:

CONCEPT
Freedom of religion or belief (FoRB), once considered to be the “first” freedom, has ICLARSbecome a controversial right. In particular, the practical possibility of implementing FoRB in impartial ways are increasingly questioned. Critics argue that FoRB cannot deliver what it promises: an equal share of freedom for people of different or no religion. Further, it is claimed that the right of FoRB, as it is regulated in international and constitutional law, is intrinsically biased because it reflects its Western and Christian origins.

Part of the problem is due to the fact that FoRB is a complex notion, including different dimensions that require careful consideration. Freedom of religion or belief, as a right recognized for every human being, is the first dimension, but not the only one. Freedom from religion, that is the right to live one’s life without being compelled to perform religious acts, is another and freedom for religion, which concerns the institutional side of this right (what was once called “libertas ecclesiae”) is a third dimension that demands consideration. Finally, freedom in religion concerns the rights that the faithful (and sometimes not so faithful) are entitled to enjoy within their religious communities.

These four dimensions of FoRB are the focus of the fourth conference of the International Consortium for Law and Religion Studies. A plenary session will be devoted to each of them and a number of parallel sessions will explore the implications of these four dimensions (see the attached provisional program). A session devoted to young scholars will help launch the conference and two final sessions addressed by representatives of law and religion centers and journals will complete the program.

CALL FOR PAPERS
Scholars are invited to submit papers for the conference, sending an abstract of no more than 300 words, in English, to cristiana.cianitto@unimi.it by March 31, 2016. A separate session is reserved for young scholars (35 years or younger) who may apply for a contribution to cover travel and accommodation expenses.

KEY DATES
Deadline for submitting paper proposals and opening of registration: March 31, 2016
Notification of paper acceptance: April 10, 2016
Deadline for being assured housing at conference venue, April 15, 2016
Deadline for registering: July 31, 2016
Publication of the final program: July 31, 2016

More details about the conference are available here.

Rome Conference Proceedings Now in Print

3486274_cartaI’m happy to report that the proceedings of our 2014 Rome conference on international religious freedom, at which Pope Francis delivered the keynote address, are now in print. Edited by our colleague at LUMSA, Dean Monica Lugato, the proceedings, titled La Libertà Religiosa Secondo Il Diritto Internationale e Il Conflitto Globale dei Valori, are available here from the Italian publisher, Giappichelli, in paperback and ebook format. Papers are in English and Italian. Get it while it’s hot!

Movsesian on Human Dignity (Rome, March 7)

logoFor those who are interested, next month I’ll be giving a faculty workshop at Università LUMSA (Libera Università Maria SS. Assunta) in Rome. The workshop, sponsored by the university’s law faculty, will take place on March 7. I’ll present my current draft, “Of Human Dignities,” a reflection on the incompatible understandings of dignity in contemporary human rights law, especially with respect to religious freedom . Details about the event are here. My talk will be in English. CLR Forum readers in Italy, please stop by and say hello!

Annicchino on the Paradigm Shift in Human Rights

In the Italian journal, Il Foglio, our friend and sometime guest contributor Pasquale Annicchino (European University Institute) has a provocative essay, “Now America waters down religious freedom and prefers rainbow colors. Why is that?” Annicchino sees a paradigm shift in American human rights policy. Where the US once favored religious liberty, it now gives priority to personal autonomy, especially LGBT rights:

What seems to have permanently changed is the cornerstone of the American projection in its narrative on rights around the world. The White House lights up with rainbow colors in the day of the Supreme Court ruling that recognizes the right to gay marriage. There is a decline in action for religious freedom, a right that refers to groups and individuals, while a vision linked to individualism and the principle of personal autonomy is on the rise, and the rights of LGBTI people are probably the clearest example of that.

An interesting take. You can read Annicchino’s essay here.

The Play of Daniel

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James Ruff as Daniel in the Trinity Production (NYT)

Earlier this month, I had a chance to see the Gotham Early Music Scene’s production of The Play of Daniel, a medieval Christmas pageant, performed as part of the annual Twelfth Night Festival at New York’s Trinity Church. The festival, which the church started several years ago, revives the idea of Christmas as a twelve-day holiday beginning on December 25 and running until Epiphany, January 6. It includes concerts and plays at Trinity and nearby St. Paul’s. I hope the organizers include this production of Daniel every year.

Students at Beauvais Cathedral in the north of France wrote Daniel, a drama based on episodes in the Old Testament book, around the year 1200. The text is a mix of Latin and Old French. The music, without rhythmical notation, survives in a manuscript at the British Library; the Trinity production rendered many of the numbers as dances. Interpolated within the biblical story are non-biblical texts, including songs that foretell the coming of Christ and even a Christmas carol of sorts, Congaudemus celebremus natalis sollempnia—“Let us together joyfully celebrate the Feast of the Nativity.” The presence of these songs, as well as some other internal evidence, suggests Daniel is meant to be performed at Christmastime.

The Trinity production was a lot of fun—the music; the costumes, inspired by pictures at the Cloisters in upper Manhattan; the acting, everything. Trinity’s Gothic Revival setting worked perfectly. Early music isn’t everyone’s thing, I know, but I think everyone would enjoy this production, including kids. There are even some laughs.

For people interested in church and state, the play has additional meaning. In the Old Testament book, King Darius’s courtiers urge him to issue an order providing that “whoever prays to anyone, divine or human, for thirty days, except to you, O king, shall be thrown into a den of lions.” Darius issues the order, but Daniel refuses to comply. “He continued to go to his house, which had windows in its upper room open toward Jerusalem, and to get down on his knees three times a day to pray to his God and praise him, just as he had done previously.” The courtiers find out and haul Daniel before Darius, who cannot take back his order, as the laws of the Medes and Persians, once proclaimed, are irrevocable. Daniel goes off to the lions, but God sends an angel to protect him. Moved, Darius frees Daniel and orders the courtiers thrown to the lions instead. They don’t fare as well.

The story of Daniel in the lion’s den is pretty well known, even in our age of biblical illiteracy. But there is another church and state allusion in Daniel, more obscure today, but which contemporary audiences would surely have recognized. Daniel was written at the height of the investiture crisis, a centuries-long struggle for control of the Catholic Church that pitted the Holy Roman Emperor and other sovereigns against the papacy. Harold Berman famously dated the origins of the Western legal system, particularly legal pluralism, to the investiture crisis and what he called “the papal revolution” of the late Middle Ages. When Daniel was written, Becket’s murder was still in living memory, and the outcome of the investiture crisis was far from certain. Surely those students of Beauvais had current events in mind when they staged a drama showing what happens to courtiers who try to impose the power of the state against believers.

If you can, go and see Daniel next Christmas. Meanwhile, to tide you over, here is a video of this year’s performance from Trinity’s website.

Panel: “The Present & Future of Religious Freedom” (Chicago, Dec. 10)

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.

CLR @ ND

CLR at ND

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.