I’ve been thinking a little bit about the difference between establishments and disestablishments of religion. Constitutions serve several functions, but for this post, I’m interested in one in particular: to entrench the idea that there is a law above the state’s law — a law that cannot be changed by ordinary legislation. Could one say this about established religions in constitutional states? The argument would be that established religions in constitutional states place the constitutional state above its ordinary law, and they thereby control and restrain (the reach of) ordinary law. If the claim works, then as a functional matter, one might think of the Constitution as an establishment of religion. The Constitution — and, even more specifically, the First Amendment — is our establishment. It enshrines limits on the power of government, and in the case of the Free Exercise Clause, it can even subordinate the ordinary acts of government to higher law. And the First Amendment is an establishment inasmuch as it incorporates certain relationships between the state and religion right into the fabric of the governmental structure — relationships which it then fixes and removes from the purview of ordinary law. The difference between constitutional states with establishments of religions and those without them is that in the former, God or the gods establish the state, while in the latter, people do. But in both cases, constitutions ‘establish’ the (for lack of a better term) sacredness of the state and cement its position above ordinary law. And so, from this perspective, the opposite of establishment is not so much disestablishment as tyranny.
A couple of days ago, I posted about the controversy surrounding a proposed new Christian law school in Canada. I questioned whether it’s a good idea to found a new law school in the current environment and wondered whether Canadian law would allow the proposed school, at Trinity Western University in British Columbia, to require its students, faculty and staff to adhere to traditional Christian sexual ethics. Over at First Thoughts, Dr. Janet Epp-Buckingham, a professor at Trinity Western and member of the group that developed the proposal for the new school, objected to some elements of my post, and I offered her the chance to respond more fully. Janet’s response follows below:
Mark Movsesian wrote a blog on January 22 questioning the wisdom of trying to start a law school at Trinity Western University. The university has a 50 year history and is located in a suburb of Vancouver, British Columbia. Mark based some of his concerns on the downturn for lawyers and law schools in the U.S. While legal education has had its issues in the last few years in Canada, the situation is much different in Canada than in the U.S. Actually, the whole university structure is much different, and more regulated, in Canada.
Trinity Western is the largest of only a handful of Christian universities in Canada. There are very few private universities. Most universities are public universities and subsidized by provincial governments. Before a new program can start at any university, public or private, it must be approved Read more
The New York Lawyers Chapter of the Federalist Society will host a panel discussion, “Can Government Deny the Use of Public Space for Religious Services? Bronx Household of Faith v. NYC Department of Education,” in New York on Wednesday, February 20. Speakers include Jordan Lorence (Alliance Defending Freedom) and CLR Forum Guest Author Nelson Tebbe (Brooklyn Law School). Details are here.
Here’s an interesting issue for readers’ consideration involving the alignment of support and opposition for religious liberty with political orientation, and whether that alignment is undergoing a fundamental shift or not. And here are chunks of three writings to set the stage.
The first is from something I wrote a few years ago:
My horse sense is that the political history of law and religion scholarship might track (very) roughly the comparatively recent history of American politics. It would evince, that is, a movement from a state of relative convergence on a set of agreed upon views to a state of increasing splintering and balkanization (or, to put it in more sanguine as well as ambiguous terms, to a state of increasing pluralism) of perspective. Of course I don’t mean that the earlier convergence among religion clause scholars tracked or mirrored an earlier political convergence, or that the current, more balkanized situation runs parallel to contemporary American politics.
What I mean is that if one were to survey the state of the field, say, roughly 30-40 years ago, one would probably see something approaching a rough similarity of perspective among many law and religion scholars — folks who read both the Free Exercise and Establishment Clauses in a ‘strong’ way. Read more
This month University of Pennsylvania Press published The Roman Inquisition by Thomas F. Mayer (Augustana College). The publisher’s description follows.
While the Spanish Inquisition has laid the greatest claim to both scholarly attention and the popular imagination, the Roman Inquisition, established in 1542 and a key instrument of papal authority, was more powerful, important, and long-lived. Founded by Paul III and originally aimed to eradicate Protestant heresy, it followed medieval antecedents but went beyond them by becoming a highly articulated centralized organ directly dependent on the pope. By the late sixteenth century the Roman Inquisition had developed its own distinctive procedures, legal process, and personnel, the congregation of cardinals and a professional staff. Its legal process grew out of the technique of inquisitio formulated by Innocent III in the early thirteenth century, it became the most precocious papal bureaucracy on the road to the first “absolutist” state.
As Thomas F. Mayer demonstrates, the Inquisition underwent constant modification as it expanded. The new institution modeled its case management and other procedures on those of another medieval ancestor, the Roman supreme court, the Rota. With unparalleled attention to archival sources and detail, Mayer portrays a highly articulated corporate bureaucracy with the pope at its head. He profiles the Cardinal Inquisitors, including those who would play a major role in Galileo’s trials, and details their social and geographical origins, their education, economic status, earlier careers in the Church, and networks of patronage. At the point this study ends, circa 1640, Pope Urban VIII had made the Roman Inquisition his personal instrument and dominated it to a degree none of his predecessors had approached.