This year’s annual AALS section on law and religion in New Orleans is hosting a panel discussion on Saturday, January 5, from 10:30-12:15, called “Free Exercise of Religion and Free Speech.” Bill Marshall (UNC), Perry Dane (Rutgers), Erica Goldberg (Dayton), Kellen Funk (Columbia), and I will be speaking, and Michael Moreland (Villanova) is chairing the panel. Much of my talk is drawn from this paper.
Here is the panel description (it’s probably fair to say that my own talk will focus on the last two items):
Free exercise of religion and freedom of speech are both protected by the First Amendment, but how are they related? Prominent recent cases such as Masterpiece Cakeshop v. Colorado Civil Rights Commission and NIFLA v. Becerra raised claims about religiously motivated speech, and this program will explore the historical, theoretical, and doctrinal relation between freedom of speech and free exercise of religion. Among the topics addressed will be the significant doctrinal differences between constitutional claims for free speech and free exercise, the argument that free speech and free exercise are in some sense reducible to each other, the historical development of freedom of speech and religious free exercise in political theory and American constitutional law, and the current view that some values (such as anti-discrimination norms or protection against hate speech) should outweigh rights of free speech or freedom of religion.
The last sentence of the announcement of this new book from Princeton University Press–The Birth of Modern Belief: Faith and Judgment from the Middle Ages to the Enlightenment, by Berkeley historian Ethan Shagan–caught my attention. It confirms an essential, conservative critique of the Enlightenment. The Enlightenment didn’t put an end to “belief” as a basis for one’s deepest commitments; it merely changed the objects of belief from traditional Christian concepts to new ones. I’m not sure what Shagan’s position is on all that, but the book looks very interesting indeed. Here’s the description from the Princeton website:
This landmark book traces the history of belief in the Christian West from the Middle Ages to the Enlightenment, revealing for the first time how a distinctively modern category of belief came into being. Ethan Shagan focuses not on what people believed, which is the normal concern of Reformation history, but on the more fundamental question of what people took belief to be.
Shagan shows how religious belief enjoyed a special prestige in medieval Europe, one that set it apart from judgment, opinion, and the evidence of the senses. But with the outbreak of the Protestant Reformation, the question of just what kind of knowledge religious belief was—and how it related to more mundane ways of knowing—was forced into the open. As the warring churches fought over the answer, each claimed belief as their exclusive possession, insisting that their rivals were unbelievers. Shagan challenges the common notion that modern belief was a gift of the Reformation, showing how it was as much a reaction against Luther and Calvin as it was against the Council of Trent. He describes how dissidents on both sides came to regard religious belief as something that needed to be justified by individual judgment, evidence, and argument.
Brilliantly illuminating, The Birth of Modern Belief demonstrates how belief came to occupy such an ambivalent place in the modern world, becoming the essential category by which we express our judgments about science, society, and the sacred, but at the expense of the unique status religion once enjoyed.