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August 6, 2018|Brett Kavanaugh, Contraception Mandate, Hobby Lobby, Justice Anthony Kennedy, Newdow v. Roberts, Priests for Life v. HHS, Religious Liberty

God, Man, and the Law according to Judge Kavanaugh

by Mark L. Movsesian|

Brett Kavanaugh, U.S. Supreme Court associate justice nominee for U.S. President Donald Trump, on Capitol Hill in Washington, D.C. (Zach Gibson/Bloomberg via Getty Images)
Judge Kavanaugh's future record on religious liberty cases will likely resemble that of Justice Kennedy.

February 14, 2017|Chuck Schumer, Citizen United, Confirmation Process, Hillary Clinton, Hobby Lobby, Neil Gorsuch, Roe v. Wade, Ronald Dworkin, Shelby County

Democrats Need a New Supreme Court Nomination Playbook

by John O. McGinnis|

The old Democratic playbook on Republican Supreme Court nominations will no longer work for the Gorsuch confirmation hearings. Democrats used to spend much of their time talking about the importance of precedent and demanding that nominees follow it. The point, of course, was to protect one particular precedent above all—Roe v. Wade—and more generally keep alive the precedents favoring liberalism that were minted in the Warren and to some extent Burger  and even Rehnquist eras.

But this approach no longer fits the times. One reason is multiplication of precedents that the Democratic base wants overruled. Citizens United is the best example. Hillary Clinton was even going to make its overruling a litmus test of her judicial appointments. But there are others too. Senator Schumer has already complained in the context of this nomination about Shelby County v Holder, which found a portion of the Voting Rights Act unconstitutional. And few cases enraged the left like Hobby Lobby, which held that closely held corporation had religious freedom rights under the Religious Freedom Restoration Act.  More generally, given that liberals have not been a majority on Court in several generations, there is growing body of precedent they do not like.

And much of the Democratic party too is changing to become more openly radical. Thus, its base is not satisfied with simply standing on past precedent while hoping that the Court will drift their way. It wants the Court to be a more active partner in progressive social change.

This creates a dilemma for Democrats. The very important advantage of prioritizing precedent is that that appears to make them adherents of following the law, where the law is defined as the past case law of the Supreme Court.

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November 14, 2016|

The Paradox of Jefferson’s “Establishment of Religious Liberty” and the Problem of the Administrative State

by Richard Samuelson|

In response to: Freedom of, Freedom for, and Freedom from Religion: The Contested Character of Religious Freedom in America

A statue of Thomas Jefferson includes this figure holding a tablet bearing several names that different belief systems have for a higher power, titled “Religious Freedom, 1786.”

Michael Zuckert’s Liberty Forum essay is a great introduction to religious liberty as it is discussed in America today, and provides a useful analytical framework to understand the tensions and controversies we face with regard to religious liberty, and perhaps liberty more generally. He strikes me as on the mark in his conclusion that religious liberty is ultimately a political subject in the United States, which demands negotiation among competing goods, perhaps even competing understandings of justice, represented, in part, by competing understandings of the nature and purpose of religious liberty. That said, Zuckert’s formulation, precisely because it describes today’s…

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More Responses

Religious Liberty After John Locke

by Francis J. Beckwith

The central point of Michael Zuckert’s Liberty Forum essay is that contemporary disputes about religious liberty should not come as a surprise, since they are the result of three contrary, though sometimes overlapping, understandings of religious liberty that have been found in the body politic in differing degrees since the American Founding. He classifies these…

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Religious Freedom Can Now Mean Only: Freedom for Religion

by Ralph Hancock

Michael Zuckert’s Liberty Forum essay does an excellent job of bringing to light ambiguities and tensions that have always been present in the notion of religious freedom. He is certainly right that there is no Pure Theory of Religious Freedom, which, if only we can grasp it and make it universally accepted, would resolve all…

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Michael Zuckert Responds to His Critics

by Michael Zuckert

The first two responses to my Liberty Forum essay illustrate well that political theory is (still) not an exact science. Francis Beckwith finds my “religious liberty taxonomy” to be “largely correct . . . as an account of the history of America’s church/state jurisprudence,” but he doubts that my classification is as adequate for understanding…

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November 2, 2016|

Freedom of, Freedom for, and Freedom from Religion: The Contested Character of Religious Freedom in America

by Michael Zuckert|

A statue of Thomas Jefferson includes this figure holding a tablet bearing several names that different belief systems have for a higher power, titled “Religious Freedom, 1786.”

Americans are discussing the topic of “religious freedom” quite a lot these days, which might give us the impression that religious freedom is one fixed thing. Or perhaps some would say it used to be one thing but has become something else since the time of the Founding. This Liberty Forum essay will argue that the situation, both historically and today, is more complex than either view. I want to argue that there is indeed a core or center to the idea of religious freedom in America but that this core or center is at the intersection of, or overlap among,…

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Responses

Religious Liberty After John Locke

by Francis J. Beckwith

The central point of Michael Zuckert’s Liberty Forum essay is that contemporary disputes about religious liberty should not come as a surprise, since they are the result of three contrary, though sometimes overlapping, understandings of religious liberty that have been found in the body politic in differing degrees since the American Founding. He classifies these…

Read More

The Paradox of Jefferson’s “Establishment of Religious Liberty” and the Problem of the Administrative State

by Richard Samuelson

Michael Zuckert’s Liberty Forum essay is a great introduction to religious liberty as it is discussed in America today, and provides a useful analytical framework to understand the tensions and controversies we face with regard to religious liberty, and perhaps liberty more generally. He strikes me as on the mark in his conclusion that religious…

Read More

Religious Freedom Can Now Mean Only: Freedom for Religion

by Ralph Hancock

Michael Zuckert’s Liberty Forum essay does an excellent job of bringing to light ambiguities and tensions that have always been present in the notion of religious freedom. He is certainly right that there is no Pure Theory of Religious Freedom, which, if only we can grasp it and make it universally accepted, would resolve all…

Read More

Michael Zuckert Responds to His Critics

by Michael Zuckert

The first two responses to my Liberty Forum essay illustrate well that political theory is (still) not an exact science. Francis Beckwith finds my “religious liberty taxonomy” to be “largely correct . . . as an account of the history of America’s church/state jurisprudence,” but he doubts that my classification is as adequate for understanding…

Read More

May 24, 2015|Citizens United, For-profit organizations, Hobby Lobby, Non-profit organizations, Ruth Bader Ginsburg

For-Profit and Non-profit Organizations Should Enjoy the Same Civic Rights

by John O. McGinnis|

In Burwell v. Hobby Lobby, Justice Ruth Bader Ginsburg drew a sharp contrast between for-profit and religious organizations.  Whereas for-profits are “organized to do business in the commercial world,” religious organizations, she said, serve citizens as believers. The strict separation between commerce and other spheres of civic life is also reflected in the common complaint that the Supreme Court in Citizens United wrongly reached out to extend First Amendment protection to for-profit corporations as well as the non-profit corporation actually at issue in the case.

The attempt to deprive for-profit enterprises of the rights to participate in political and civic life is characteristic of modern left-liberalism, which seems to believe that for-profit activity is inherently less civic-minded than not-for-profit endeavors.  The distinction is not altogether new. For centuries nobles disdained those in trade and asserted that merchants should have fewer rights than they did.   This stance is yet another instance where social democrats want to create a society based on status distinctions rather than on the exercise of equal legal rights.

But the distinction is not a sound one. 

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October 17, 2014|Employment Non-Discrimination Act, First Amendment, Hobby Lobby, Religious Freedom

Assessing the Blowback from Hobby Lobby

by Robin Fretwell Wilson|

Supreme Court Hears Arguments In Case Challenging Affordable Care Act

The Hobby Lobby case, “one of most publicized controversies in decades involving a religious claim,” in the words of Columbia law professor Kent Greenawalt, prevented the Obama administration from mandating under the Affordable Care Act (ACA) that all employers cover all contraceptives approved by the Food and Drug Administration—even those drugs and devices that objecting employers believe “cause the demise of an already conceived but not-yet-attached human embryo.”

The U.S. Supreme Court held that the Religious Freedom Restoration Act (RFRA) prohibits the government from forcing closely held, family-owned corporations to cover such drugs and devices if a less restrictive means is available. One less restrictive means available to the administration, the Court noted, was to extend to such corporations the significant concessions the Obama administration already made for objecting, religious non-profits. This is a step the administration is now taking.

It was a high-profile win for religious objectors. Nonetheless, the highest percentage of Americans in a decade, according to the Pew Research Center, see religion’s influence as waning. How can this be?

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August 20, 2014|

With Non-Interference Comes Responsibility

by Paul Horwitz|

In response to: Freedom of Religion and the Freedom of the Church

Richard Garnett’s Liberty Forum essay argues eloquently for the importance of institutional religious freedom in our system of government and our broader society. As Garnett writes, some form of institutional religious liberty, or “freedom of the church,” is an “old but still important idea.” It’s an idea, moreover, that in one form or another has occupied an increasing amount of attention in recent public controversies and Supreme Court cases involving religion. Few writers have presented it as clearly or attractively as Garnett has, here and in other work. I can hardly add much to that. Let me instead offer a few…

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More Responses

Freedom of the Church Not Freedom of Religion

by John Inazu

I have long benefitted from Professor Garnett’s work in the area of law and religion. Given the sometimes contentious climate in and out of the academy, it is worth highlighting the tone of his writing as well as its substance. Both are admirable. One of Professor Garnett’s core scholarly pursuits has been to argue for a…

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Negotiating the Freedom of the Church

by Donald L. Drakeman

One of the challenges in commenting on Rick Garnett’s essay is that I think his deeply thoughtful and measured analysis is basically right on target. If we are going to take individuals’ freedom of religion seriously, we need take into account the importance of their religious communities. Exactly what that means is, unfortunately, hard to…

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Freedom of the Church

by Richard W. Garnett

I am grateful to the Liberty Law Forum for publishing my short essay, Freedom of Religion and the Freedom of the Church and for securing thoughtful, helpful responses from John Inazu, Paul Horwitz, and Donald Drakeman. These three first-rate scholars are my friends and teachers; I have learned a great deal from their work and through…

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July 22, 2014|Hobby Lobby, Religious Freedom, RFRA

Post-Hobby Lobby Illusions

by Hadley Arkes|

My late leader of days long gone, the first Mayor Daley of Chicago, once poured out his heart about life in the political arena: “I have been vilified, I have been crucified, I have been ….criticized!” Well, I haven’t been vilified or crucified, but I have been criticized vigorously for my writings in this space on the reasoning in the Hobby Lobby case, and criticized by a long-time friend, the Editor of the Public Discourse, Ryan Anderson. My response reveals his critique, while at the same time it may sharpen and deepen the argument.

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July 19, 2014|ACLU, Campaign Finance, Cato, Hobby Lobby

Mutable ACLU v. Immovable Cato

by John O. McGinnis|

The ACLU has modified over the last decade two important positions on civil liberties. Historically its position had been that limiting contributions to political campaigns was unconstitutional. In 2010 it shifted to support “reasonable” limits on contributions to political campaigns.  Strikingly, the ACLU in 2013 then failed to file any brief at all in McCutcheon v. FEC, which challenged aggregate limits on contributions. These limits prevented citizens from expressing support for individual candidates, even when those individual contributions were of modest size.

Second, in 1993 ACLU President  Nadine Strossen enthusiastically supported the Religious Freedom Restoration Act.  Later the ACLU, as David Bernstein reported, continued to support legal exemptions for reasons of religious conscience, but opposed subsequent bills providing for across-the-board exemptions  because of fear that they would interfere with anti-discrimination laws.  The ACLU today supports the bill to override the Hobby Lobby even though the  decision did not involve an anti-discrimination law.

In contrast, CATO, the premier libertarian think-tank, has been relentlessly consistent in its views on domestic policy, opposing infringements on both civil rights and property rights alike. The consistency has continued despite some unfortunate recent squabbles about the structure of its leadership.

The difference between the mutability of ACLU and the constancy of Cato underscores important truths about both the nature of liberty and politics.

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July 16, 2014|Citizens United, Hobby Lobby, Mediating Instiutions

Progressive Jurisprudence’s Assault on Mediating Institutions

by John O. McGinnis|

A disturbing aspect of the jurisprudence of justices on the left of the Supreme Court is their unwillingness to grant constitutional protections to mediating institutions. This hostility to mediating institutions—structures that help individuals join together to exercise power independent of the state—was demonstrated both in Citizens United and Hobby Lobby. In Citizens United, four justices would have prevented corporations from exercising the same First Amendment rights as individuals to express opinions before an election. In Hobby Lobby Justices Ginsburg and Sotomayor would have held that even closely held corporations could not obtain the protections of the Religious Freedom Restoration Act.

The measure of these justices’ hostility lies in their Houdini-like efforts to escape the established doctrine that supported the rights of corporations in these cases. The majority decision in Citizens United rested on the long First Amendment tradition of protecting the freedom of speech rights of corporations. For instance, New York Times v. Sullivan, offering a First Amendment shield against libel actions against public figures, involved a corporation.  Moreover, the history of commercial speech rights is almost entirely that of corporate rights. The majority in Hobby Lobby relied on the Dictionary Act, which expressly directs courts to include corporations within the definition of a person unless the context suggests otherwise.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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