Cross & Gavel Podcasts Numbers 30 and 31

I want to highlight for readers a resource that I don't mention often, one that I'm trying to build into a more consistent voice on topics at the intersection of faith and work, particularly work in the law. I want to make you aware of Cross & Gavel audio.

I've been podcasting at Cross & Gavel now for close to 4 years, and we have produced 31 podcasts, on topics ranging from the Christian calling of the criminal defense lawyer, to reading lists, to law libraries and ideas on engaging the law school campus for Christ.

In an effort to be more regular in posting the podcasts, I'm hoping for a roughly twice-monthly schedule. I want to highlight the two latest and let you know that a discussion of the Vanderbilt religious liberty debacle is forthcoming.

In volume 30, I'm interviewed by David Nammo, executive director of the Christian Legal Society, about T.S. Eliot's Murder in the Cathedral, one of my favorite pieces of literature. Here's an excerpt:

Nammo: You're a professor, so you love to talk about the history and all this stuff.
Me: Blah, blah, blah, blah . . .
Nammo: But so what? What about you? What does it mean in your life? What does it mean in my life?

My response touches on the beautiful rendering by Eliot of the little injustices we tolerate in the midst of mundane life, in contrast to our unspoken fear of living in the face of that big affront to justice: sin. And he ties it to vocation: what can we really do in light of the incarnation in a fallen world? It's a great play and a short, fun discussion about it.

In volume 31, I interview University of Florida Law Professor Steven Willis on the religious rights of corporations, a topic that has come to the fore with the Hobby Lobby litigation over the HHS Mandate.

Professor Willis sets out in some details some of the best and worst arguments for the recognition of free exercise rights in corporate entities. He also goes on to suggest other possible responses and legislation on the matter.

Find the podcasts in the list at the landing page of the Cross & Gavel website, or on the Regent University page on iTunesU:

Law, Truth, and Freedom

Continuing the discussion I started earlier this week on pluralism and public justice, I'll move to my second proposition.

Human beings ought to be free to pursue what is good unhindered by state-sponsored barriers.  As a result, “plural”—conflicting—visions of the Good will co-exist and interact in society.

This seems compatible with a Christian view that holds—as a fact, not an opinion or a personal value (see Thursday’s post)—that the Creator God and His Son are owed our love and worship, and that coercion de-natures love and worship. So while politics and religion are perhaps inseparable, freedom of worship and robust religious liberty are possible.

(Note here the stark difference in commitments to religious liberty in Western societies—rooted in Christian thinking—and those rooted in Islam).

Yet the fact remains that the law itself makes truth claims, and civil institutions must choose between conflicting visions of the Good, the nature of the human person, the nature and purpose of law, and a wide variety of other foundational presuppositions which reflect—and require—moral knowledge.

What is the purpose of punishment?

Why compensate victims and on what grounds?

What is a judge?

What does it mean for a state to “do justice”?

Different answers to these simple—but foundational—questions result in widely divergent practices, laws, and even institutions.

Even on basic presuppositions, we are faced with plural conceptions of the Good, and the choices that must be made in this regard in areas of public justice are certainly within the authority of the civil government.

Some resources on this topic:

Edwin S. Corwin, The Higher LawBackground of American Constitutional Law (1955)

Michael Cromartie, ed., Caesar’sCoin Revisited: Christians and the Limits of Government (1996)

James Madison, Memorial andRemonstrance

John Courtney Murray, We HoldThese Truths (1960)

Craig A. Stern, Things Not Nice:An Essay on Civil Government (1997)

Craig A. Stern, Crime, MoralLuck, and the Sermon on the Mount

The Methuselah of Litigation Lives On

Seventeen years ago, in 1995, a small New York City congregation, the Bronx Household of Faith, was told that it could not rent school facilities for weekend use because it would violate the Establishment Clause.  New congregations, congregations that outgrow their own buildings, and congregations whose facilities have suffered fire or flood – all need to rent space, particularly in the expensive real estate market of New York City.

Bronx Household went to court, claiming that the New York City school district was violating its free speech right.  The church lost in the district court and Second Circuit, but did not give up.

Then the Supreme Court issued its Good News Club v. Milford Central School opinion in 2000, in which the Court strongly suggested that the Bronx Household decisions were wrongly decided.  The church went to court again and won.  Since 2002, dozens of NYC churches have rented space on weekends for their services.

But the school district continued to rework its policy to keep the churches out.  In 2007, the Second Circuit upheld the school district’s latest policy that allowed churches to meet for religious speech and discussions -- but not for religious worship services.  When the Supreme Court turned down the church’s petition for review in December 2011, the case seemed over.

But then the Supreme Court issued its January 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, breathing new life into churches’ free exercise claims.  The congregation went back into the district court, claiming this time that the school district’s policy violated its free exercise rights.

Today the district court ruled in favor of the church and all NYC churches.  But the school district is quite likely to file another appeal in the Second Circuit.

Please pray for the Bronx Household of Faith and all churches in New York City that rent school facilities.  Pray that the Second Circuit will uphold their right to do so.  Pray for Jordan Lorence, the attorney faithfully representing the church for seventeen years, and Rick Claybrook who has drafted CLS’s most recent amici briefs in the case.  Finally, please pray for Justice Breyer and his work on the Supreme Court.

Common Sense or Religious Discrimination?

For over 35 years, some public university officials have looked for opportunities to exclude religious groups from campus.  At first, they claimed that the Establishment Clause prohibited religious activity on public educational property because of the “school prayer” decisions.  But in 1981, the Supreme Court held that religious student groups had a free speech right to meet on campus for prayer and Bible study.  In 1995, the Court ruled that religious student groups had a right to funding from student activity fee funding, if other student groups received funding.

Some university officials then adopted a new tack.  All student groups were required to agree to abide by nondiscrimination policies, including prohibitions on religious discrimination.  That would be an easy agreement, but only if nondiscrimination policies were interpreted in a common sense manner to allow religious groups to require their leaders to be religious. 

But a handful of university officials began to misinterpret nondiscrimination policies to mean that religious groups could not require their leaders to agree with their religious beliefs.  Nondiscrimination policies, intended to protect religious students, suddenly were being used to exclude them from campus.  Evangelical Christian groups were most affected because of their common requirement that their leaders affirm statements of faith defining the groups’ core beliefs.

A particularly egregious example of this tortured logic was seen at Vanderbilt University this past year.  In April, the Vanderbilt administration told a Christian student group that it could not require its leaders to have “a personal commitment to Jesus Christ.” Vanderbilt also told the Christian Legal Society that it could not expect its leaders to lead its Bible studies, prayer, and worship, because that indicated that CLS expected its leaders to have certain religious beliefs.  As a result, 15 Christian groups left the Vanderbilt campus this spring.

Please pray for Justice Ginsburg who seems to support exclusion of religious student groups from campus.  Please pray for the students and their faculty advisors at Vanderbilt University.  Pray that university administrators will change course and once again welcome true religious diversity and pluralism to the Vanderbilt campus.

This is the fifth in a series of posts from Kim Colby commemorating the Fortnight4Freedom

Fortnight4Freedom: Smith is the Problem

From Kim Colby, Senior Counsel at the Christian Legal Society's Center for Law & Religious Freedom, our guest blogger during the Fortnight for Freedom:

Please pray that the Court will overturn the Smith decision.  Please also pray for Justice Scalia and his work on the Court.

The problem is Smith.  Religious liberty has always been a fragile proposition.  But it moved to the top of the list of endangered constitutional rights with the Supreme Court’s 1990 decision in Employment Division v. Smith. 

Pre-Smith, the Court allowed religious citizens or religious institutions an exemption from the application of a neutral law of general applicability, unless the government could demonstrate a compelling interest, unachievable by less restrictive means.  In other words, even if the government prohibited the sale of wine in general, it must permit churches to purchase wine for use in Communion services.

In Smith, the Court, in an opinion written by Justice Scalia, removed this religion-protective test.  Religious citizens and institutions no longer are presumed to be exempt from neutral laws of general applicability. 

Over the past two decades, several loopholes have been found in the Smith decision.  But it’s why the government could argue to the Court a few months ago in Hosanna-Tabor that the government could review churches’ employment decisions under the nondiscrimination laws.  Fortunately, the Court distinguished Smith and protected churches’ employment decisions.  But it’s also why the Administration claims it can force religious employers to provide insurance coverage of contraceptives and abortifacients for employees, despite the employers’ religious objections.   

The Fortnight for Freedom - From Kim Colby

I want to welcome Kim Colby as my guest blogger for the next two weeks to help celebrate The Fortnight for Freedom.  

Kim is Senior Counsel at the Center for Law & Religious Freedom, where she has worked since graduating from Harvard Law School in 1981. She has represented religious groups in numerous appellate cases, including two cases that were heard in the United States Supreme Court.  She was involved in congressional passage of the Equal Access Act in 1984. With Kim's long history of service in the area of religious liberty, I thought it appropriate that she post for me during the Fortnight of Freedom. From Kim:

The Fortnight for Freedom begins today.   Please thank God that America has been a refuge for those seeking religious liberty for hundreds of years.  Specifically, thank God for the Supreme Court’s January decision protecting churches’ right to employ ministers without governmental interference (the Hosanna-Tabor case).   Please pray for Supreme Court Chief Justice John Roberts, who wrote the unanimous opinion, and for his work on the Court.  (We will pray for each Justice in the coming days.)

The “Fortnight for Freedom” is a national campaign of teaching, witness, and prayer against the abortifacient and contraceptive mandate and in favor of religious freedom. -MS

Weekend Wanderings

In case your Google reader is backed up, here are some links to get your week started:

Peter Leithart, Torah and Social Justice over at On the Square at First Things. A thoughtful piece on one of my favorite (and least favorite) topics, "social" justice. HT to Professor Pryor at PryorThoughts.

Jordan Ballor, Which Church? Whose Justice? at the Acton Institute PowerBlog.

Another terrible Ninth Circuit decision. The court holds that public university administrators may apply non-discrimination policies to student religious groups that discriminate on the basis of religion, even while allowing other student groups to restrict membership to those who hold particular beliefs. Any group, in other words, may exclude from leadership or membership anyone who does not subscribe to the group's ideology-- unless the group is a religious group, formed on the basis of "ideology." There is a clear split in the circuits now on this question, so it may be ripe for Supreme Court review. (Here is Steve Shiffrin at MOJ describing the issue).

J. Mark Bertrand, Pattern of Wounds. Bertrand's second installment in the Roland March series is getting great press, and deservedly so. If you like crime fiction, thrillers, cop stuff, noir fiction, mysteries, or any good read, pick up his first March novel, Back on Murder, then move on to Pattern of Wounds. Great stories, compelling characters, and wonderful dialogue. Add Bertrand's rich, but subtly-woven themes surrounding man's search for understanding in the face of the real evil and suffering-- and good-- in the world, and you have the complete package. Have a listen to the Books & Culture podcast and read Lars Walker's recent review of Back on Murder.