My friend, Tom Berg, has this response to my post about Free Exercise Clause atrophy. He and I don’t see things too differently, though he is as usual more optimistic than I am. I think he undersells what can be read from the Stormans cert. denial. And the denial of cert. in Ben-Levi v. Brown (again with a J. Alito dissent). And the denial of cert. in Big Sky Colony, where I was also pleased to join another excellent amicus brief spearheaded by Tom himself urging review of the Free Exercise Clause issues. The Court just doesn’t want any part of these issues right now.
But Tom’s post makes me think that perhaps atrophy may actually be the best option on offer. Tom writes that “moderate-ish” liberals might be able to combine with the likes of Justice Alito to hear a case involving “state/local government action against Muslims, or against some other group that everyone agrees is a religious minority.” That is because “liberal opinion” has accepted the various third-party-harms theories being floated about, and because of the expansion of the idea of harm “that modern welfare-state liberalism regards as ‘public.'”
I think I agree with most of Tom’s description here. Tom is probably right that, e.g., Christians with certain specific beliefs about sexuality are not and will never be, in the “liberal opinion” he refers to, the sort of viable “minorities” thought to deserve FEC protection. That “liberal opinion” is powerful now, growing, and likely to influence the ideological profile of the Supreme Court directly and indirectly for years to come. If that is true, then perhaps we should root for atrophy, if not death. Better the Smith rule, which at least has the advantage of being clear and reasonably predictable, than the rule of “liberal opinion” masquerading as constitutional law. Indeed, perhaps religious accommodation has always been infected by something of this quality. We accommodate when we don’t really care–for prison beards, oddballs, and tiny, exotic sects to which nobody really pays attention. When we do care, we find ways not to accommodate (harm! third parties! dignity!). And as the ambit of the “public” increases, it becomes easier and easier to make claims about third party harms, particularly when those harms cut to the quick of “liberal opinion.”
A participant in our colloquium in law at St. John’s this spring, and a noted critic of religious accommodation (someone, as it happens, whose views in general don’t often match up with my own), suggested that if given a choice between non-discriminatory religious persecution and religious discrimination, he’d opt for religious persecution. I can’t say I agree. But this exchange makes me understand that view much more clearly.
“What does it mean to see the American landscape in a secular way?” asks Nicolas Howe at the outset of this innovative, ambitious, and wide-ranging book. It’s a surprising question because of what it implies: we usually aren’t seeing American landscapes through a non-religious lens, but rather as inflected by complicated, little-examined concepts of the sacred.
In Beyond Memory, Dennis Barone uncovers the richness and diversity of the Italian Protestant experience and places it in the context of migration and political and social life in both Italy and the United States. Italian Protestants have received scant attention in the fields of Italian American studies, religious studies, and immigration studies, and through literary sources, church records, manuscript sources, and secondary sources in various fields, Barone introduces such forgotten voices as the Baptist Antonio Mangano, the Methodist Antonio Arrighi, and his great-grandfather Alfredo Barone, a Baptist minister to congregations in Italy and Massachusetts. Examining the complex histories of these and other Italian Protestants, Barone argues that Protestantism ultimately served as a means to negotiate between Old World and New World ways, even as it resulted in the double alienation of rejection by Roman Catholic immigrants and condescension by Anglo-Protestants. Though the book focuses on the years of high immigration (1890–1920), it also looks at precursors to post-reunification Protestants as well as Protestants in Italy today, now that the nation has become a country of in-migration.