This afternoon I was delighted to participate in a panel at the Religious Theory Conference dealing with various subjects involving the First Amendment. My own talk dealt with the Free Exercise Clause, and it focused on the question whether the doctrine which has grown up around Employment Division v. Smith is as predictable (as a guide to both judges and litigants) as its rhetoric has suggested to its supporters and opponents alike.
The second speaker was Mike Helfand (Pepperdine), one of the conference’s co-organizers, who gave a very interesting talk drawn from an excellent paper titled, “Litigating Religion.” Mike’s provocative thesis is that the current approach to the issue of whether civil courts are capable of adjudicating religious disputes — one which posits total jurisdictional incompetence — is misguided. Instead, civil courts should be required to “defer” to religious institutions’ authoritative interpretation of their religious tenets, but where there is no such interpretation, courts should step in.
The third speaker on our panel was Dean Raymond Pierce of North Carolina Central Law School. Dean Pierce spoke about the coercion test sometimes mentioned as the operative test for certain Establishment Clause issues. He focused particularly on the issue of school prayer, and offered an impassioned criticism of the ways in which current Supreme Court doctrine prohibits certain kinds of religious expressions in public fora.
The final speaker was Mark Strasser (Capital University), who discussed the endorsement test and its evolution since Justice O’Connor first formulated it. He considered Justice Alito’s interesting twist on the test in Salazar v. Buono, where Justice Alito argued that removal of a religious symbol might convey disrespect or disparagement of religion according to the reasonable observer standard.
While my colleague Marc spoke on another panel this afternoon, I attended a competing session, “Who Should Influence Whom?” This panel addressed a growing field in law and religious scholarship: legal discourse within religious traditions.
Perry Dane (Rutgers-Camden) began the panel by discussing the interplay between faith and law in the history of Christianity. He described different turning points in that history, including the apostolic era, the Papal Revolution of the Middle Ages, and the Protestant Reformation. Even though Christianity has expressed ambivalence towards law, he argued, legal discourse has played an important role in Christian thought.
David Flatto (Penn State) then spoke about the concept of law in the three Abrahamic faiths: Christianity, Islam, and Judaism. The Abrahamic faiths, he suggested, all share a sense that legal authority comes principally from religious sages, not political actors, that justice should be separated from power. He gave several examples from Judaism, both Biblical and post-Biblical, as well as a couple of examples from Islam and Christianity – though he also noted differences among these three religions’ approach to the question as well, particularly Christianity’s.
David Opderbeck (Seton Hall) spoke third. His paper was a theological and philosophical reflection on intellectual property. He noted that our notions of intellectual property and culture have become divorced from metaphysics, including Christian metaphysics: Both popular and academic theories of culture ignore theology in favor of pragmatic market explanations. He asked whether theology can “rescue” contemporary metaphysics and contribute to theories of culture and culture-production, and suggested that the Christian concept of grace — “the gift” can do so.
I am here at this year’s Religious Legal Theory conference, The Competing Claims of Law and Religion: Who Should Influence Whom?, at Pepperdine in sunny Malibu. The first panel on international and comparative perspectives is now going on.
The first speaker is Stijn Smet (a Ph.D. student at Ghent), who is speaking about Freedom of Religion Versus Freedom From Religion in the Jurisprudence of the European Court of Human Rights. The first case Mr. Smet is discussing is the Dahlab v. Switzerland, involving a teacher who wanted to wear a headscarf in public school. He criticizes this decision.
He is now talking about Lautsi v. Italy, the Italian crucifix case, where the Grand Chamber of the European Court ultimately upheld Italy’s right to display the crucifix in public schools. He criticizes the idea that the crucifix is a “passive” symbol at least by comparison with the Dahlab decision’s description of the headscarf as an active symbol.
He explains the difference in outcome as involving the concept of margin of appreciation. Neither case dealt with indoctrination, though he recognizes that the definition of indoctrination needs to be filled out. Smet also notes that there is no Establishment Clause analogue in the Convention, and he notes the difference in power and jurisdiction of the European Court. He suggests an “equal respect” argument which might have been available through Article 14.
The second speaker is Mark D. Rosen (Chicago-Kent).