March 29, 2022 - LAW AND RELIGION FORUM

Over at the Volokh site, I have a post on last week’s decision in Ramirez v. Collier, in which the Supreme Court ruled in favor of a death-row inmate who argued that prison officials violated RLUIPA by refusing to allow him to have a clergy present at his execution. RLUIPA requires prison restrictions to meet strict scrutiny: the state must justify restrictions on religion by showing that it has chosen the least restrictive means of satisfying a compelling interest.

Strict scrutiny, which applies in many areas of constitutional law, in practice operates as a balancing test. Critics (including me) have pointed out that the test is inherently indeterminate, depending largely on the intuitions of the particular judges hearing a case. In a separate concurrence in Ramirez, Justice Kavanaugh argues that tradition can help make the test less subjective:

In Ramirez, for example, prison officials had concluded that the marginal benefit of excluding pastors from the execution chamber outweighed the burden on inmates’ RLUIPA rights. Chief Justice Roberts and the majority evidently disagreed. But how were they to know? “It is difficult for a court applying” strict scrutiny, Kavanaugh wrote, “to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear.” If the justices’ intuitive judgments are all that make the difference, that hardly seems legitimate.
Here, according to Kavanaugh, is where tradition can help. For centuries in American practice, clergy have been present at executions. And that practice continues today. The presence of clergy, in other words, is a living tradition. “Although the compelling interest and least restrictive means standards are necessarily imprecise,” Kavanaugh wrote, “history and state practice can at least help structure the inquiry and focus the Court’s assessment of the State’s arguments.” Kavanaugh wrote separately to emphasize this aspect of the Court’s reasoning.

Here’s a link to my post.

[In response to some thoughts I had posted about interesting developments in law and religion in Australia, Professor Joel Harrison had these illuminating observations, which he has given me permission to post. MOD]

In his blog post, Professor DeGirolami raises a possible emerging ‘Australian School’ – Australian-based scholars who are interested in Christian theological concerns and justifying religious freedom in light of this. Professor DeGirolami’s post spurred a few initial thoughts in response; I’m grateful he invited me to share them here.

First, although developing a theological jurisprudence is certainly not something unique to scholars in one place, is there something about Australia that may allow this to grow? One possible angle for reflection is on a ‘trans-Atlantic’ difference, and its continuing relevance to Australia.

The trans-Atlantic difference puts me in mind of the theologians Stanley Hauerwas and John Milbank. Hauerwas the American is anti-Constantinian and sees the violence of the State as the primary thing to resist. Separation is necessary to maintain a prophetic difference – or even just survival of the Church as the Church. Although much indebted to Hauerwas, Milbank the Brit understands Christendom and Christianity as coterminous – Christianity means (complexly) instantiating a political-spiritual project. More broadly, and as generalisation, the boundaries of church and State discourse or what is a matter for theology and what is a matter for law are more blurred on one side of the Atlantic.

Of course, Australia is not either country. It is a former colony and still part of the Commonwealth, but it also has a strong United States-flavour. Constitutionally it is sometimes described as having a ‘Washminster’ system, with its blending of federalism and responsible government. Culturally and politically, it can swing between looking to one country or the other.

That said, I wonder whether it is still possible to have more of a ‘British’ sensibility in Australia and talk about cooperative arrangements between church and State, or even develop public debate in theological terms. We can add to this an ongoing relationship to First Peoples, who are partly recognised at State and federal level as maintaining a spiritual or metaphysical connection with the land, as judges of the High Court of Australia recently stated. Although Australia was not permitted to have an established church, this requirement was not opposed to a religiously infused culture and politics. That is not entirely dissimilar from the United States, but Australia perhaps historically went further – maintaining something of that British inheritance in a colonial context. To this day, for example, despite some voices in Australia saying otherwise, it is very difficult to claim a ‘Rawlsian consensus’ of public reason or even that this is something of significant debate.

Second, this growth in theological concern takes place against an emerging culture war dynamic. Recent years in Australia have seen a remarkable shift. Matters that were previously uncontroversial – like a Catholic, Jewish, or Muslim school’s liberty to hire only members of the religious tradition – are now challenged. It is not difficult to find outright hostility to religious groups or at least non-comprehension. (In one example, an Australian rights group argued the State needed to protect nuns from the Catholic Church, which was infringing their right to private and family life.) This takes place against the backdrop of numerous parliamentary inquiries into religious liberty. Different lobby groups on both sides have sprung-up. With each new inquiry they have escalated their rhetoric, stating the opposing side poses an existential threat that demands immediate action (and presumably more funding and support). In this context, the turn to theological frames (often a version of postliberalism) can reflect an interest in finding resources beyond the culture war.

It serves a critical function and a productive function.

Critically, the turn to theology helps to unmask any continuing claims to neutrality. Most notably in the context of religious liberty debates, it helps us to understand how the appeal to autonomy as promoted within liberal frames is not divorced from a theological view – what it means to be free and how this understanding came to be, what the role of civil authority is in relation to this. A theological turn offers insight into our current context: different groups engaging in an agonistic discourse of incommensurable claims to liberty.

Productively then, the turn to theology looks for an alternative. Thus, we see language of the common good, duty, virtue, solidarity, peace, and charity developed in aid of asking what the shape of a complex, good society should be.

This raises a final important point that I think should shape any apparent ‘school’ interested in theological jurisprudence. Often religious liberty claims are framed as simply protecting a particular community’s own backyard: my liberty, my autonomy, my freedom from x. However, this turn to theology aims at something more – contemplating the future of our shared life. This is not a question simply for Australian-based scholars, of course. But I’m certainly glad we splendidly named ‘young upstarts’ can make a contribution (and await criticism).