Here is the video of my panel with Michael Moreland and Rick Garnett at a recent conference at Notre Dame, discussing the current condition of free speech. For those disinclined to read the paper below, you can get a rough sense of some of the points in it in the video. I appreciated the chance to chat with Mike and Rick to get a sense of where we agree (on many issues) and perhaps see things a little differently (a smaller, but interesting and important, set of issues) as to the First Amendment.
I’ve posted a new draft, forthcoming in the Harvard Journal of Law and Public Policy: The Sickness Unto Death of the First Amendment. Here is the abstract.
The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current form. Their unprecedented expansion has brought on an awareness of their emptiness in serving the larger, common political good. The yearning for political community and shared purpose transcending individual interest has in turn generated vigorous calls for First Amendment constriction to promote what are claimed to be higher ends — in some cases ends that were promoted by the hypertrophy of the First Amendment itself.
What binds these claims is the view that expansive First Amendment rights harm others or are more generally socially or politically harmful. In some cases, the same people who argued for the disconnection of free speech rights from common civic ends are now advocating free speech constriction to reconnect free speech to new ends said to be constitutive of the American polity. The same is true for religious freedom. But in a society that is deeply fractured about where the common good lies, imposing new limits on First Amendment rights in the name of dignity, democracy, equality, sexual freedom, third party harm, or any of the other purposes championed by the new constrictors is at least as likely to exacerbate social and civic fragmentation as to reconstitute it.
This paper describes the development of the First Amendment — and in particular of its ends and limits — through three historical periods. Part I concerns early American understandings, which conceived rights of free speech and religious freedom within an overarching framework of natural rights delimited by legislative judgments about the common political good. Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti-orthodoxy. The paper describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape.
Here are some important law-and-religion news stories from around the web:
- The U.S. Departments of Health and Human Services, Labor, and Treasury issued new rules providing exemptions from the Affordable Care Act’s contraceptive coverage mandate to entities that object on the basis of sincerely held religious beliefs.
- The Satanic Temple filed a lawsuit accusing Netflix and Warner Bros. Entertainment of using a statue of the goat-headed deity Baphomet in the series “Chilling Adventures of Sabrina” without authorization.
- The Adam Community Center filed a lawsuit against the City of Troy (M.I.) claiming the City’s Zoning Board of Appeals discriminated against the non-profit Muslim community group by rejecting its plans to build a mosque.
- Kansas Governor-elect Laura Kelly (D) is exploring ways to avoid enforcing a law that protects adoption agencies from being required to place children in homes against their religious beliefs.
- Lake Norman Charter School (Huntersville, N.C.) announced that it will no longer hold its graduation ceremony in a church after receiving a letter from Americans United for the Separation of Church and State alleging constitutional violations.
- Twenty Christians from Early Rain Covenant Church in Chengdu, China, were arrested for preaching and distributing leaflets about Christianity.
- Over 700 religious leaders and organizations signed a letter opposing President Trump’s recent proclamation that bars anyone entering the United States outside of official border crossings from applying for asylum.
- A Muslim woman filed a lawsuit against Walmart claiming she was harassed by managers and coworkers for requesting religious accommodations and fired after reporting the discrimination to Walmart’s corporate office.
- Egyptian Member of Parliament Ismail Nasr al-Din proposed a bill seeking to omit the mention of religion on national identification cards and official state documents.
- A new group, Suma de Actores Sociales (United Social Actors), was recently launched in Mexico City seeking to oppose President-elect Andrés Manuel López Obrador’s efforts to legalize abortion, euthanasia, and marijuana.
- Chicago pastor James MacDonald and Harvest Bible Chapel filed a defamation lawsuit after years of bloggers at a website called “The Elephant’s Debt” criticizing his leadership style and the Church’s finances.
- Bulgarian Baptists peacefully protested new legislation that significantly restricts religious freedom, pending a final vote by the Bulgarian Parliament.
- After the Supreme Court granted certiorari in the Peace Cross case, veterans react to the efforts to tear down the ninety-three-year-old WWI memorial: “Americans of all faith backgrounds should be outraged.”
- U.S. Ambassador-at-Large for International Religious Freedom Sam Brownback, at an event marking the 20th Anniversary of the International Religious Freedom Act, called for renewed activism on protecting religious liberty around the world.
Yesterday’s book note concerned the place, if any remains, of religion in the modern university–religious or otherwise. Here is a related entry about the rather more integrated role of religion in the medieval university, in which religious ritual played an important part and in which prayer for deceased colleagues helped to preserve the connection between the living and the dead. But perhaps it isn’t so much that religion as such has left the modern university, as that the nature of university rituals has simply changed to reflect very different religious commitments.
The book is Rituals for the Dead: Religion and Community in the Medieval University of Paris (Notre Dame Press) by William J. Courtenay.
In his fascinating new book, based on the Conway Lectures he delivered at Notre Dame in 2016, William Courtenay examines aspects of the religious life of one medieval institution, the University of Paris, in the thirteenth and fourteenth centuries. In place of the traditional account of teaching programs and curriculum, however, the focus here is on religious observances and the important role that prayers for the dead played in the daily life of masters and students.
Courtenay examines the university as a consortium of sub-units in which the academic and religious life of its members took place, and in which prayers for the dead were a major element. Throughout the book, Courtenay highlights reverence for the dead, which preserved their memory and was believed to reduce the time in purgatory for deceased colleagues and for founders of and donors to colleges. The book also explores the advantages for poor scholars of belonging to a confraternal institution that provided benefits to all members regardless of social background, the areas in which women contributed to the university community, including the founding of colleges, and the growth of Marian piety, seeking her blessing as patron of scholarship and as protector of scholars. Courtenay looks at attempts to offset the inequality between the status of masters and students, rich and poor, and college founders and fellows, in observances concerned with death as well as rewards and punishments in the afterlife.
Rituals for the Dead is the first book-length study of religious life and remembrances for the dead at the medieval University of Paris. Scholars of medieval history will be an eager audience for this title.
We are delighted to welcome the Honorable Diane S. Sykes to the Colloquium in Law and Religion today!
Judge Sykes will be discussing a number of her opinions involving law and religion, including Korte v. Sebelius (a contraception mandate for-profit RFRA case before Burwell v. Hobby Lobby); CLS v. Walker (an equal access/speech case before CLS v. Martinez); Books v. Elkhart County (involving state-sponsored religious displays); and Tagami v. City of Chicago (concerning the role of a moral tradition in satisfying intermediate scrutiny for both expressive conduct and Equal Protection Clause purposes).
Welcome, Judge Sykes!
The work of Nicholas Wolterstorff, whether it concerns religious arguments in public discussion, political theology, aesthetics and religion, justice, liberal democracy, or many others, is always worth reading. A few years ago, I participated in a very worthwhile conference concerning Professor Wolterstorff’s short book, The Mighty and the Almighty: An Essay in Political Theology (here’s my little reaction)–an important meditation on the continuing relevance of political theology today written from a distinctively liberal Christian perspective.
And now comes Wolterstorff’s newest book, Religion in the University (Yale University Press). It’s a timely and rather fraught subject, and I’m sure that whatever Wolterstorff says will be enlightening.
What is religion’s place within the academy today? Are the perspectives of religious believers acceptable in an academic setting? In this lucid and penetrating essay, Nicholas Wolterstorff ranges from Max Weber and John Locke to Ludwig Wittgenstein and Charles Taylor to argue that religious orientations and voices do have a home in the modern university, and he offers a sketch of what that home should be like. He documents how, over the past ve decades, remarkable changes have occurred within the academy with regard to how knowledge is understood. During the same period, profound philosophical advancements have also been made in our understanding of religious belief. These shifting ideals, taken together, have created an environment that is more pluralistic than secular. Tapping into larger debates on freedom of expression and intellectual diversity, Wolterstorff believes a scholarly ethic should guard us against becoming, in Weber’s words, “specialists without spirit and sensualists without heart.”
We close this week’s book posts with a comparative religion textbook that Oxford released earlier this year. The book is Invitation to World Religions, by John Brodd (CSU-Sacramento) and others, now in its third edition. Here’s the description from the Oxford website:
Featuring a unique, consistent, and modular chapter structure–“Teachings,” “History,” and “Way of Life”–and numerous pedagogical features, Invitation to World Religions, Third Edition, invites students to explore the world’s great religions with respect and a sense of wonder. This chapter structure enables students to navigate each religion in a consistent and systematic way and to make comparisons between religions. The book describes the essential features of each religion and shows how they have responded to basic human needs and to the cultural contexts in which they developed. The authors also encourage students to develop an appreciation for what religious beliefs and practices actually mean to their adherents.
Here are some important law-and-religion news stories from around the web:
- Religious groups engaged in get-out-the-vote efforts before Tuesday’s midterm elections, seeking to galvanize support for both Democrats and Republicans.
- The Alliance Defending Freedom filed suit against Shawnee State University officials after the university punished a professor for declining to use a student’s preferred pronouns.
- The Constitutional Court of Germany has ruled that the Church of the Flying Spaghetti Monster is not a religion and will not receive the same rights as Christian denominations.
- Utah House candidate Todd Zenger, running against a Jewish opponent, sent out a flyer asking voters to vote for “our god” and “our religion,” leading the Jewish Federation to issue a press release asking Zenger to clarify whether he means that he supports all Abrahamic religions.
- The Catholic Diocese of Bathurst in New Brunswick was awarded $3.4 million after its insurance company refused to compensate sexual abuse victims.
- Alabama voters approved two constitutional amendments: that the Ten Commandments can be displayed on public property as long as the display meets constitutional requirements and that the state’s policy is to recognize and support the importance of unborn life and the rights of unborn children.
- A couple who refused to vaccinate their child sued a Brooklyn yeshiva after their son was denied admission for failing to meet the school’s immunization requirements, claiming they were entitled to a religious exemption.
- A Third Circuit panel heard arguments in the City of Philadelphia’s lawsuit against a Catholic adoption agency that refused to place children with same-sex couples.
- West Virginia voters adopted a state constitutional amendment stating that “nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”
As an outsider, I find the debate among my Catholic friends and colleagues on the true interpretation of the Second Vatican Council extremely interesting. On the one hand, there are those who insist on following “the spirit of Vatican II,” which I understand as a call to go beyond the words of the Council documents themselves and continue to press in a progressive direction, notwithstanding the traditions of the Church. On the other, there are those who wish to adopt “a hermeneutic of continuity”–I believe the phrase is Pope Benedict XVI’s–and read the documents consistently with the tradition of the Church. I realize my description is a bit of a caricature and that each side’s position contains more nuance. But I think my description is correct, as a kind of thumbnail sketch.
A new book from Eerdman’s, The Disputed Teachings of Vatican II: Continuity and Reversal in Catholic Doctrine, by Seton Hall theologian Thomas G. Guarino, addresses this debate. Looks very interesting. Here’s the description from the publisher’s website:
The Second Vatican Council (1962–1965) radically shook up many centuries of tradition in the Roman Catholic Church. This book by Thomas Guarino, a noted expert on the sources and methods of Catholic doctrine, investigates whether Vatican II’s highly contested teachings on religious freedom, ecumenism, and the Virgin Mary represented a harmonious development of—or a rupture with—Catholic tradition.
Guarino’s careful explanations of such significant terms as continuity, discontinuity, analogy, reversal, reform, and development greatly enhance and clarify his discussion. No other book on Vatican II so clearly elucidates the essential theological principles for determining whether—and to what extent—a conciliar teaching is in continuity or discontinuity with antecedent tradition.
Readers from all faith traditions who care about the logic of continuity and change in Christian teaching will benefit from this masterful case study.
We Americans think of ourselves as living in a moment of deep polarization around issues of religion and politics, and we do. But the roots of the crisis go back decades. For decades, conservatives, including religious conservatives, have complained that the mainstream media, which has a huge influence in our culture, is biased against them, and so cannot be trusted. It’s not simply a matter of how the media reports stories; it’s how the media chooses which stories and people to cover, and which not to cover. Professional journalists have rejected the criticism and insisted that they have acted, to the extent possible, in a neutral way. Conservatives have never been convinced, which is why today’s progressive complaints about media bias seem to them a little hollow, and tardy.
This month, Harvard releases a history of media in the 1960s and 70s that seems, more or less, to support the conservative criticism: On Press: The Liberal Values That Shaped the News, by Seton Hall journalism professor Matthew Pressman. Pressman argues that the media very self-consciously adopted liberal positions during those years, with the best of motives. “Objectivity and impartiality, the cornerstones of journalistic principle, were not jettisoned,” the description reassures us, only “reimagined.” Which is just what conservatives always maintained–though they didn’t find the reimagination reassuring. Here’s the description of the book from the Harvard website:
In the 1960s and 1970s, the American press embraced a new way of reporting and selling the news. The causes were many: the proliferation of television, pressure to rectify the news media’s dismal treatment of minorities and women, accusations of bias from left and right, and the migration of affluent subscribers to suburbs. As Matthew Pressman’s timely history reveals, during these tumultuous decades the core values that held the profession together broke apart, and the distinctive characteristics of contemporary American journalism emerged.
Simply reporting the facts was no longer enough. In a country facing assassinations, a failing war in Vietnam, and presidential impeachment, reporters recognized a pressing need to interpret and analyze events for their readers. Objectivity and impartiality, the cornerstones of journalistic principle, were not jettisoned, but they were reimagined. Journalists’ adoption of an adversarial relationship with government and big business, along with sympathy for the dispossessed, gave their reporting a distinctly liberal drift. Yet at the same time, “soft news”—lifestyle, arts, entertainment—moved to the forefront of editors’ concerns, as profits took precedence over politics.
Today, the American press stands once again at a precipice. Accusations of political bias are more rampant than ever, and there are increasing calls from activists, customers, advertisers, and reporters themselves to rethink the values that drive the industry. As On Press suggests, today’s controversies—the latest iteration of debates that began a half-century ago—will likely take the press in unforeseen directions and challenge its survival.