Last night, by comfortable margins, the Tennessee legislature passed a bill prohibiting Vanderbilt University’s “all-comers” policy for student groups. The policy, which requires that student groups open leadership positions to all Vanderbilt students, even students who disagree with the groups’ core beliefs, has sparked a dispute between the university and some student religious organizations, which argue that the policy effectively dilutes their religious identity. The bill initially banned all-comers policies only at state universities, but an amendment extended the bill’s coverage to private institutions that receive more than $24 million in state subsidies — which just happens to be the amount Tennessee gives Vanderbilt. The bill does not actually cut off funding, for the moment, but sponsors threaten to do so in future if Vanderbilt does not change its policy. The bill now goes to Governor Bill Haslam for signature.
A couple of terms ago, in CLS v. Martinez, the Supreme Court held that a similar all-comers policy at the University of California-Hastings was constitutional. As I’ve argued before, though, even if an all-comers policy is constitutional, it’s very misguided. The point of campus diversity is to allow the expression of various viewpoints. It’s hard to see how a group can express a viewpoint if it cannot choose leaders who share its beliefs.
Thanks to Mark and Marc for having me here this month. I’m hoping to blog a bit this month about the competing claims of law and religion in the age of, what I’ve taken to calling, the “new multiculturalism.” What I’m thinking of here is a growing set of conflicts between law and religion where religious individuals and religious groups are less concerned about recognition and symbolism and more concerned about securing autonomy from the state. So, for example, I would contend that questions about prayer in public schools and religious symbols on government property have taken a back seat to debates over the ministerial exception (Hosanna-Tabor v. EEOC) and the role of religious law within U.S. courts (e.g. the recent wave of proposed sharia-bans).
One of the things that I’ve found interesting about this focus is how interdisciplinary the inquiries have been. Addressing this new multiculturalism invariably requires dabbling in everything from arbitration to international law to political theory. And similarly, in my recent Litigating Religion piece, I’ve been working a bit on the options for resolving disputes that turn on religious doctrine and practice, a question that requires thinking about the alternative dispute resolution paradigms of both public law and private law. I’m looking forward to discussing this wide range of issues here at the CLR Forum this month.
A very interesting looking book by Justin Buckley Dyer (Missouri), which in part defends the traditional view of the relationship between natural law and opposition to slavery against recent revisionist attacks: Natural Law and the Antislavery Constitutional Tradition (CUP 2012). The publisher’s description follows.
In Natural Law and the Antislavery Constitutional Tradition, Justin Buckley Dyer provides a succinct account of the development of American antislavery constitutionalism in the years preceding the Civil War. Within the context of recent revisionist scholarship, Dyer argues that the theoretical foundations of American constitutionalism – which he identifies with principles of natural law – were antagonistic to slavery. Still, the continued existence of slavery in the nineteenth century created a tension between practice and principle. In a series of case studies, Dyer reconstructs the constitutional arguments of prominent antislavery thinkers such as John Quincy Adams, John McLean, Abraham Lincoln, and Frederick Douglass, who collectively sought to overcome the legacy of slavery by emphasizing the natural law foundations of American constitutionalism. What emerges is an understanding of American constitutional development that challenges traditional narratives of linear progress while highlighting the centrality of natural law to America’s greatest constitutional crisis.
Here is a collection of essays edited by the great sociologists of religion Robert Bellah and Hans Joas that is likely to be of great interest to law and religion scholars, The Axial Age and Its Consequences (HUP 2012). The publisher’s description follows.
The first classics in human history—the early works of literature, philosophy, and theology to which we have returned throughout the ages—appeared in the middle centuries of the first millennium BCE. The canonical texts of the Hebrew scriptures, the philosophical writings of Plato and Aristotle, the Analects of Confucius and the Daodejing, the Bhagavad Gita and the teachings of the Buddha—all of these works came down to us from the compressed period of history that Karl Jaspers memorably named the Axial Age.
In The Axial Age and Its Consequences, Robert Bellah and Hans Joas make the bold claim that intellectual sophistication itself was born worldwide during this critical time. Across Eurasia, a new self-reflective attitude toward human existence emerged, and with it an awakening to the concept of transcendence. From Axial Age thinkers we inherited a sense of the world as a place not just to experience but to investigate, envision, and alter through human thought and action.
Bellah and Joas have assembled diverse scholars to guide us through this astonishing efflorescence of religious and philosophical creativity. As they explore the varieties of theorizing that arose during the period, they consider how these in turn led to utopian visions that brought with them the possibility of both societal reform and repression. The roots of our continuing discourse on religion, secularization, inequality, education, and the environment all lie in Axial Age developments. Understanding this transitional era, the authors contend, is not just an academic project but a humanistic endeavor.