“The Social Equality of Religion or Belief” (Alan Carling, ed.)

I’m pleased to announce that The Social Equality of Religion or Belief, edited by Professor Alan Carling, will be released in SEROBMarch by Palgrave Macmillan and is now available for pre-order. I have a chapter in the book titled, “The Bloating of the Constitution: Equality and the U.S. Establishment Clause,” which, it is probably fair to say, falls on the skeptical side of the book’s contributions. Here are the first few lines of my chapter:

The US Establishment Clause is in disorder. There are currently at least six different approaches to interpreting the ‘establishment’ component of the First Amendment injunction that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” (US Constitution, Amendment 1). Tests of church-state separation, non-coercion, secularity, historical practice, non-endorsement and neutrality all have been used by the Supreme Court at one time or another across a broad panoply of cases. Sometimes two or more of these tests have been squeezed together within a single case, with implied reassurances that the result does not really depend upon the test anyway. At levels below the Supreme Court, this sort of doctrinal bricolage is often only prudent self-protective practice by judges compelled by the Court’s opacity to hedge their bets.

I have argued in other work that these doctrinal confusions are in part the result of the Court’s propensity to elevate a single value to master status in evaluating Establishment Clause controversies (DeGirolami 2013). Dependence on equality or neutrality or separationism as the preeminent constitutional touchstone in one case is felt by the Court to be inadequate or incomplete in a second or third; additional tests are thus cobbled together to accommodate what are perceived in subsequent cases to be distinctive circumstances. Single-value theories of the Establishment Clause misconstrue the conflicts at stake by leveling them – compressing them so as to be capable of processing through the filter of the selected value. Call this phenomenon constitutional flattening. One result of constitutional flattening is the multiplication of Establishment Clause theories to remedy the practical deficiencies in any one of them as they are applied case to case.

This Chapter explores a different side effect of monistic approaches to the Establishment Clause: constitutional bloating – the expansion of the scope of the Establishment Clause without the formality of an actual judicial ruling so expanding it. Courts that rely on an abstract value or interest in deciding constitutional controversies bloat the Establishment Clause by trading covertly on its political popularity, conceptual malleability and indeterminacy of meaning. Merely by recurring to or invoking the selected value – always one with vague but deep rhetorical appeal – courts swell the scope of the Establishment Clause without the need explicitly to acknowledge that expansion in their opinions. The problem is not merely that Establishment Clause bloat renders dubious any claims about the predictability of single-value approaches to constitutional adjudication. It is also that judges are thereby licensed to broaden the reach of the Clause by suggestion, allusion, or implication, without openly and clearly stating what they are doing.

The value of equality is by far the most potent and effective instrument of Establishment Clause bloat. This is so for two reasons: first, equality is the overriding legal value of our age – the defining constitutional issue of our time. The rhetorical power of equality is devastating, eliciting in its most ardent adherents something approaching militant zeal. As Steven Smith has put it, “equality is a juggernaut that overwhelms pundits, politicians, and professors, and threatens to flatten individuals or institutions that dare stand up against it” (Smith 2014). Simply to invoke the value of equality in favor of any given outcome is frequently perceived as a self-evident and irrefutable justification for it, one that it would be scandalous to question. Second, equality is multivalent, and equalities of different types may and often do conflict. Equality of opportunity is not equality of outcome; procedural equality of treatment is not the ambitious equality of ‘concern’ or ‘respect’ for every person’s substantive commitments; and though neutrality is a kind of equality, it is not the only kind. Moreover, there may be internal conflicts even within equalities of the same type. The fearsome cultural, legal and political might of equality, coupled with the multiplicity and ambiguity of egalitarian meanings, have united to create a singularly effective tool of Establishment Clause bloat.

Around the Web This Week

Some interesting law and religion news stories from around the web this week:

Heilo, “Eastern Rome and the Rise of Islam”

In December, Routledge released “Eastern Rome and the Rise of Islam: History and Prophecy,” by Olof Heilo (Center for Middle Eastern Studies in Lund).  The publisher’s description follows:

The emergence of Islam in the seventh century AD still polarises scholars who seek to separate religious truth from the historical reality with which it is associated. However, history and prophecy are not solely defined by positive evidence or apocalyptic truth, but by human subjects, who consider them to convey distinct messages and in turn make these messages meaningful to others. These messages are mutually interdependent, and analysed together provide new insights into history.

It is by way of this concept that Olof Heilo presents the decline of the Eastern Roman Empire as a key to understanding the rise of Islam; two historical processes often perceived as distinct from one another. Eastern Rome and the Rise of Islam highlights significant convergences between Early Islam and the Late Ancient world. It suggests that Islam’s rise is a feature of a common process during which tensions between imperial ambitions and apocalyptic beliefs in Europe and the Middle East cut straight across today’s theological and political definitions. The conquests of Islam, the emergence of the caliphate, and the transformation of the Roman and Christian world are approached from both prophetic anticipations in the Ancient and Late Ancient world, and from the Medieval and Modern receptions of history. In the shadow of their narratives it becomes possible to trace the outline of a shared history of Christianity and Islam. The “Dark Ages” thus emerge not merely as a tale of sound and fury, but as an era of openness, diversity and unexpected possibilities.

Approaching the rise of Islam as a historical phenomenon, this book opens new perspectives in the study of early religion and philosophy, as well as providing a valuable resource for students and scholars of Islamic Studies.

Marx-Wolf, “Spiritual Taxonomies and Ritual Authority”

This month, the University of Pennsylvania Press releases “Spiritual Taxonomies and Ritual Authority: Platonists, Priests, and Gnostics in the Third Century C.E.” by Heidi Marx-Wolf (University of Manitoba). The publisher’s description follows:

The people of the late ancient Mediterranean world thought about and encountered gods, angels, demons, heroes, and other spirits on a regular basis. These figures were diverse, ambiguous, and unclassified and were not ascribed any clear or stable moral valence. Whether or not they were helpful or harmful under specific circumstances determined if and what virtues were attributed to them. That all changed in the third century C.E., when a handful of Platonist philosophers—Plotinus, Origen, Porphyry, and Iamblichus—began to produce competing systematic discourses that ordered the realm of spirits in moral and ontological terms.

In Spiritual Taxonomies and Ritual Authority, Heidi Marx-Wolf recounts how these Platonist philosophers organized the spirit world into hierarchies, or “spiritual taxonomies,” positioning themselves as the high priests of the highest gods in the process. By establishing themselves as experts on sacred, ritual, and doctrinal matters, they were able to fortify their authority, prestige, and reputation. The Platonists were not alone in this enterprise, and it brought them into competition with rivals to their new authority: priests of traditional polytheistic religions and gnostics. Members of these rival groups were also involved in identifying and ordering the realm of spirits and in providing the ritual means for dealing with that realm. Using her lens of spiritual taxonomy to look at these various groups in tandem, Marx-Wolf demonstrates that Platonist philosophers, Christian and non-Christian priests, and gnostics were more interconnected socially, educationally, and intellectually than previously recognized.