In this podcast, Mark and I discuss three law and religion cases either decided by the Supreme Court this term or to be decided next term: Trinity Lutheran, Masterpiece Cakeshop, and IRAP v. Trump.
“The War on Sex” (Halperin & Hoppe, eds.)
It is an interesting feature of the culture wars that frequently partisans on both sides
believe that it is only those on the other side who are doing the warring. But this new book of essays, “The War on Sex,” edited by David M. Halperin and Trevor Hoppe, puts me in mind of a line by Philip Rieff: culture is the form of fighting before the firing begins. The authors of these essays do not in the least believe that the culture wars are over. Not, at any rate, if the book’s description generally reflects their views. The publisher’s description is below.
The past fifty years are conventionally understood to have witnessed an uninterrupted expansion of sexual rights and liberties in the United States. This state-of-the-art collection tells a different story: while progress has been made in marriage equality, reproductive rights, access to birth control, and other areas, government and civil society are waging a war on stigmatized sex by means of law, surveillance, and social control. The contributors document the history and operation of sex offender registries and the criminalization of HIV, as well as highly punitive measures against sex work that do more to harm women than to combat human trafficking. They reveal that sex crimes are punished more harshly than other crimes, while new legal and administrative regulations drastically restrict who is permitted to have sex. By examining how the ever-intensifying war on sex affects both privileged and marginalized communities, the essays collected here show why sexual liberation is indispensable to social justice and human rights.
Masterpiece Cakeshop and the Passion for Equality
At the First Things site today, I have an essay on the Masterpiece Cakeshop case, in which the Supreme Court granted cert at the end of its term a couple of weeks ago. In the case, a cake shop owner argues that the First Amendment grants him the right to decline to design and bake a cake for a same-sex marriage. I use Masterpiece Cakeshop, and a hypothetical question I posed to my class in law and religion, to explore Tocqueville’s observation that the concept of equality inevitably expands in democratic societies, and to explain how a case in which same-sex marriage is so central may, in fact, have little to do with sexuality:
Conservatives often assume that controversies like Masterpiece Cakeshop reflect changing sexual norms and an intolerance of resistance. That’s correct, in part; one definitely senses a “you-lost-get-over-it” sentiment on the other side. And yet, the students’ reaction to my hypothetical case suggests that something else is going on as well, that the dispute is not about sexuality as such. Rather, it’s about not allowing people to draw moral distinctions that exclude others and hurt their feelings, no matter what the justification. That’s what the florist was doing in my hypothetical case—and that, I think, was what bothered the students.
Tocqueville saw this coming long ago. Democracies, he wrote, prize equality above all other values. Their “passion for equality,” he observed, is “ardent, insatiable, incessant, invincible.” It is not simply a matter of assuring every person equal rights under law. Tocqueville believed, in Patrick Deneen’s words, that democracies inevitably seek to do away with “any apparent differences” among people—“material, social, or personal.” No distinctions are to be tolerated. In fact, Tocqueville wrote that democratic societies have an inevitable tendency toward pantheism, since, in the end, even a distinction between Creator and created becomes intolerable.
If I’m right that, in the long run, social intuitions drive the law, and if I’m also right that my students’ reaction reflects something about social intuitions in America today, then litigants like the shop owner in Masterpiece Cakeshop will have an increasingly hard time prevailing in American courts. As the concept of equality inevitably extends further and further, distinctions like the one he is trying to maintain will appear more and more rebarbative. People will fail to empathize at a basic level.
You can read the whole essay here.
“The Cambridge Companion to Natural Law Jurisprudence” (Duke & George eds.)
Natural law jurisprudence, which spans back more than a thousand years, is one of the 
central philosophical/jurisprudential traditions. This new volume from Cambridge, edited by Professors George Duke and Robert George (one of the preeminent exponents of the so-called “new” natural law), treats many important subjects, including the foundations of natural law; practical reason, normativity, and ethics; and law and politics. The contributors are a virtual who’s who of leading thinkers about natural law. A very helpful contribution for the law student who is interested in learning about this important jurisprudential school. Here is the description.
This collection provides an intellectually rigorous and accessible overview of key topics in contemporary natural law jurisprudence, an influential yet frequently misunderstood branch of legal philosophy. It fills a gap in the existing literature by bringing together leading international experts on natural law theory to provide perspectives on some of the most pressing issues pertaining to the nature and moral foundations of law. Themes covered include the history of the natural law tradition, the natural law account of practical reason, normativity and ethics, natural law approaches to legal obligation and authority and constitutional law. Creating a dialogue between leading figures in natural law thought, the Companion is an ideal introduction to the main commitments of natural law jurisprudence, whilst also offering a concise summary of developments in current scholarship for more advanced readers.
Around the Web
Here are some important law-and-religion news stories from around the web:
- The 9th Circuit Court of Appeals has rejected Hawaii’s request for an emergency injunction against the Trump Administration’s travel ban while the state seeks clarification on its scope.
- Members of Egypt’s population of Coptic Christians fear that their community is under siege after a series of unexplained killings.
- Muslim groups in Indonesia and Malaysia are calling for a boycott of Starbucks in response to the chain’s public support of gay rights.
- An Australian state has passed a law shifting the burden of proof from plaintiffs to defendants for certain portions of civil cases brought by victims of sexual abuse, though it is not retroactive.
- Two of Belgium’s regional parliaments have voted to ban all animal slaughter conducted without pre-stunning in a move some see as targeted at the Muslim and Jewish communities; Christian leaders have condemned the ban.
- Representatives of Muslim and Jewish organizations in Europe have come together to oppose restrictions on nonmedical circumcision and ritual slaughter.
- Native Americans are suing the U.S. Fish and Wildlife Service to prevent the agency from removing grizzly bears from the endangered species list because they say to do so without consulting them would violate their religious freedom.
The Clash of Traditions
At the Liberty Law site this morning, I have an essay on our recent Tradition Project conference in Trento, and what it reveals about the different understandings of tradition in American and Russian thought. For me, the conference shows how Samuel Huntington was right 20 years ago, when he described how a clash of civilizations would characterize the post-war world:
I thought a great deal about Huntington at a conference I helped organize last month in Trento, Italy, on tradition in American and Russian thought. Cosponsored by the Tradition Project at the St. John’s Center for Law and Religion, the Postsecular Conflicts Project at the University of Innsbruck, and Center for Religious Studies at the Fondazione Bruno Kessler, the conference brought together American, European, and Russian commentators to discuss the use of tradition in law and politics in the two countries. Given the way that Russo-American relations have dominated world politics lately, it seemed an important topic.
Tradition is an exceptionally complicated concept and the participants in the conference expressed a variety of views. The Russian scholars, in particular, disagreed among themselves about precisely what is going on in their country right now (more on this in a bit). But, for me at least, the conference confirmed the basic correctness of Huntington’s insights. People disposed to favor tradition in Russia and America often understand the concept very differently.
Consider religious freedom. For the past several years, Russian church and government officials have argued strenuously that cultural traditions can legitimately limit the exercise of religion. Both Patriarch Kirill of the Russian Orthodox Church and President Putin have argued that cultural traditions deserve respect because they reflect eternal truths and embody a people’s morality. Because traditions have a moral character, states can legitimately act to protect them from outside forces. States can, for example, legitimately limit proselytism by new religious groups that threaten to undermine traditional religious communities and values. This attitude is behind a ban Russia recently imposed on the activities of the Jehovah’s Witnesses, a ban the country’s Supreme Court sustained.
Some American traditionalists have a similar understanding of the moral value of tradition. But most, it’s fair to say, do not. As a rule, American conservatives do not defend tradition on the basis of unchanging moral verities or the right of nations to defend their cultures from foreign threats. American traditionalism is more pragmatic and empirical.
With all that’s going on now–and I mean right now, as the Trump-Putin meeting today and Trump’s speech in Warsaw yesterday–readers might find the essay interesting. You can find it here.
Slaboch, “A Road to Nowhere”
We began this week with a history of the reform impulse in American society. We close with a forthcoming book from the University of Pennsylvania Press that casts doubt on the whole progressive project, A Road to Nowhere: The Idea of Progress and Its Critics, by political scientist Matthew Slaboch (Denison University). Seems pleasantly pessimistic. The publisher’s description follows:
Since the Enlightenment, the idea of progress has spanned right- and left-wing politics, secular and spiritual philosophy, and most every school of art or culture. The belief that humans are capable of making lasting improvements—intellectual, scientific, material, moral, and cultural—continues to be a commonplace of our age. However, events of the preceding century, including but not limited to two world wars, conflicts in Korea and Vietnam, the spread of communism across Eastern Europe and parts of Asia, violent nationalism in the Balkans, and genocides in Cambodia and Rwanda, have called into question this faith in the continued advancement of humankind.
In A Road to Nowhere, Matthew W. Slaboch argues that political theorists should entertain the possibility that long-term, continued progress may be more fiction than reality. He examines the work of German philosophers Arthur Schopenhauer and Oswald Spengler, Russian novelists Leo Tolstoy and Aleksandr Solzhenitsyn, and American historians Henry Adams and Christopher Lasch—rare skeptics of the idea of progress who have much to engage political theory, a field dominated by historical optimists. Looking at the figures of Schopenhauer, Tolstoy, and Adams, Slaboch considers the ways in which they defined progress and their reasons for doubting that their cultures, or the world, were progressing. He compares Germany, Russia, and the United States to illustrate how these nineteenth-century critics of the idea of progress contributed to or helped forestall the emergence of forms of government that came to be associated with each country: fascism, communism, and democratic capitalism, respectively.
Turning to Spengler, Solzhenitsyn, and Lasch, Slaboch explores the contemporary relevance of the critique of progress and the arguments for and against political engagement in the face of uncertain improvement, one-way inevitable decline, or unending cycles of advancement and decay. A Road to Nowhere concludes that these notable naysayers were not mere defeatists and presents their varied prescriptions for individual and social action.
Around the Web
Some important law-and-religion stories from around the web:
- The Iraqi military says it will soon oust ISIS from Mosul, the organization’s last remaining stronghold in Iraq, even as ISIS began using female suicide bombers in the city on Monday.
- Critics say a new regulation promulgated by the Indian government ostensibly aimed at promoting animal welfare is really meant to curtail the slaughter of cows in the country, something long sought by the country’s majority-Hindu population.
- A South African court has ruled that public schools may not promote one religion over others.
- Pope Francis will not renew the term of influential conservative Cardinal Gerhard Ludwig Müller as head of the Congregation for the Doctrine of the Faith.
- A Canadian school district’s decision to continue to allow Muslim students a worship space for their Friday prayers has ignited a firestorm of controversy that pits advocates of multiculturalism against advocates of church-state separation.
- President Donald Trump and the Pope have both expressed support for the parents of a terminally ill infant who have been fighting a hospital’s decision to withdraw his life support.
Smith, “Religion”
Continuing our sociology of religion theme this week, here is a forthcoming book from Notre Dame sociologist Christian Smith, Religion: What It Is, How It Works, Why It Matters (Princeton University Press). Defining religion is a notoriously difficult task, and this book, by the scholar who came up with the concept of Moral Therapeutic Deism, is bound to be interesting and helpful. The description from the Princeton website follows:
A groundbreaking new theory of religion
Religion remains an important influence in the world today, yet the social sciences are still not adequately equipped to understand and explain it. This book builds on recent developments in science, theory, and philosophy to advance an innovative theory of religion that goes beyond the problematic theoretical paradigms of the past.
Drawing on the philosophy of critical realism and personalist social theory, Christian Smith answers key questions about the nature, powers, workings, appeal, and future of religion. He defines religion in a way that resolves myriad problems and ambiguities in past accounts, explains the kinds of causal influences religion exerts in the world, and examines the key cognitive process that makes religion possible. Smith explores why humans are religious in the first place—uniquely so as a species—and offers an account of secularization and religious innovation and persistence that breaks the logjam in which so many religion scholars have been stuck for so long.
Certain to stimulate debate and inspire promising new avenues of scholarship, Religion features a wealth of illustrations and examples that help to make its concepts accessible to readers. This superbly written book brings sound theoretical thinking to a perennially thorny subject, and a new vitality and focus to its study.
Nicolaou, “A None’s Story”
The rise of the Nones has been the most remarked upon development in American religion since the turn of this century. A recent book from Columbia University Press, A None’s Story: Searching for Meaning Inside Christianity, Judaism, Buddhism and Islam, by author Corinna Nicolaou, is an insider’s depiction of what it’s like to follow the Nones’ path–or, perhaps, it’s better to write, a None’s path. The publisher’s description follows:
The rising population known as “nones” for its members’ lack of religious affiliation is changing American society, politics, and culture. Many nones believe in God and even visit places of worship, but they do not identify with a specific faith or belong to a spiritual community. Corinna Nicolaou is a none, and in this layered narrative, she describes what it is like for her and thousands of others to live without religion or to be spiritual without committing to a specific faith.
Nicolaou tours America’s major traditional religions to see what, if anything, one might lack without God. She moves through Christianity’s denominations, learning their tenets and worshiping alongside their followers. She travels to Los Angeles to immerse herself in Judaism, Berkeley to educate herself about Buddhism, and Dallas and Washington, D.C., to familiarize herself with Islam. She explores what light they can shed on the fears and failings of her past, and these encounters prove the significant role religion still plays in modern life. They also exemplify the vibrant relationship between religion and American culture and the enduring value it provides to immigrants and outsiders. Though she remains a devout none, Nicolaou’s experiences reveal points of contact between the religious and the unaffiliated, suggesting that nones may be radically revising the practice of faith in contemporary times.