Around the Web

Here are some important law-and-religion news stories from around the web:

  • The U.S. Supreme Court denied review in F.F. v. New York, in which the New York Court of Appeals rejected a constitutional challenge to the state’s repeal of a religious exemption from mandatory vaccination rules for school children. 
  • In America’s Frontline Doctors v. Wilcox, a California federal district court rejected a free exercise challenge to the University of California Riverside’s COVID vaccine mandate. 
  • In Snyder v. Arconic, Inc., a former employee of a metal engineering and manufacturing company brought suit against the company, claiming he was fired for expressing his Christian beliefs. 
  • In JLF v. Tennessee State Board of Education, a Tennessee federal district court rejected an Establishment Clause challenge to Tennessee’s requirement that all public schools post the national motto, “In God We Trust,” in a prominent location.
  • In T.C. v. Italy, the European Court of Human Rights, in a 5-2 Chamber Judgment, upheld an Italian court’s order in a custody case. An eight-year-old’s mother, who was a nominal Catholic and had enrolled daughter in catechism classes, objected to the girl’s father involving her in his Jehovah’s Witness religion. 
  • The U.S. House of Representatives, by a vote of 420-1, passed House Resolution 1125, condemning rising antisemitism. 

Have Americans Given Up on Free Speech?

At Law and Liberty today, I have a review essay on Jacob Mchangama’s new book, Free Speech. Mchangama argues that the United States, and the world generally, needs to recommit to free speech principles before it is too late. I argue that the real problem is not a failure to believe in free speech, but a lack of social trust. Here’s an excerpt:

It is a striking feature of American life in the first quarter of the 21st century that we have somehow created a culture in which everyone feels aggrieved. This is especially true when it comes to free speech. Both conservatives and progressives believe their opponents are out to silence them—not just beat them in debates and prevail against them in elections, but intimidate them, put them on mute permanently, eliminate any possibility of resistance. Many on each side see the other as not simply wrong, but ill-motivated and dangerous, an existential threat to be defeated before it is too late.

This state of affairs is more the norm in American history than we care to admit. Perhaps because we see ourselves in providential terms—“the last best hope of earth,” as Lincoln said—Americans always have been sensitive to threats our democracy faces and often have worried about enemies within spreading “disinformation.” Eras of Good Feeling occur relatively rarely. Even so, the level of recrimination just now seems quite high, and many Americans apparently believe we must silence our opponents before they succeed in silencing us.

In Free Speech: A History from Socrates to Social Media, Jacob Mchangama maintains that a renewed commitment to free expression can help us through these perfervid times. Mchangama, a lawyer and the founder of Justitia, a human-rights organization in Denmark, has written a programmatic history that “connect[s] past speech controversies with the most pressing contemporary ones.” Today’s debates about free expression recapitulate those of long ago, he believes, and just as our ancestors did, we must defend the right to speak against those who would take it away.

To write a comprehensive history like this one is an ambitious undertaking, and Free Speech is a mixed success. Mchangama writes engagingly and has done his research. The chapters on the Internet and social media are especially good. But even at 500 pages, a history that spans thousands of years and many civilizations is bound to be a bit superficial at times. Moreover, as he himself recognizes, tolerance for others’ speech depends as much on culture as it does on law—and in today’s polarized, distrustful America, we are less and less likely to give our opponents the benefit of the doubt and let them have their say even if the law permits it.

You can read the whole essay here.

Free Speech Today as a “Problem” for “Democracy”

Here’s an interesting collection of essays, Social Media, Freedom of Speech, and the Future of Our Democracy (OUP forthcoming), edited by Columbia President Lee C. Bollinger and University of Chicago Law Professor Geoffrey R. Stone. It frames debates about free speech today, particularly on social media, as reflecting a “problem” for American democracy–the problem of “bad speech”–in need of urgent reform and new solutions. Contributors include Hillary Clinton, Senators Amy Klobuchar, Sheldon Whitehouse, and Mark Warner, together with a host of legal academics who are highly critical of the contemporary, speech-protective American legal regime. It’s a fascinating collection and choice of contributors purely as a matter of academic sociology, reflecting the prevailing skepticism among many experts about American First Amendment protections as well as what is felt to be an outsized cultural commitment to free speech that damages the more fundamental commitments thought by many scholars to be truly constitutive of the American polity. The title of one essay, in particular, was striking in the table of contents: Dean Erwin Chemerinsky’s chapter (co-authored with his son, it appears), “The Golden Era of Free Speech.” For many skeptics, a highly speech-protective regime was once very attractive and even necessary to dismantle the then-existing cultural superstructure, but is far less so today. I discussed the matter of free speech as posing a civic problem in this piece a few years ago–“the problem of how to allocate a resource in civically responsible ways, so as to limit freedom’s hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether.” It was a problem that was largely forgotten in the 20th century, but it has now been remembered.

One of the most fiercely debated issues of this era is what to do about “bad” speech-hate speech, disinformation and propaganda campaigns, and incitement of violence-on the internet, and in particular speech on social media platforms such as Facebook and Twitter. In Social Media, Freedom of Speech, and the Future of our Democracy, Lee C. Bollinger and Geoffrey R. Stone have gathered an eminent cast of contributors–including Hillary Clinton, Amy Klobuchar, Sheldon Whitehouse, Mark Warner, Newt Minow, Tim Wu, Cass Sunstein, Jack Balkin, Emily Bazelon, and others–to explore the various dimensions of this problem in the American context. They stress how difficult it is to develop remedies given that some of these forms of “bad” speech are ordinarily protected by the First Amendment. Bollinger and Stone argue that it is important to remember that the last time we encountered major new communications technology-television and radio-we established a federal agency to provide oversight and to issue regulations to protect and promote “the public interest.” Featuring a variety of perspectives from some of America’s leading experts on this hotly contested issue, this volume offers new insights for the future of free speech in the social media era.

Movsesian at BYU Next Month

I’m looking forward to participating and catching up with friends next month at the 2022 Religious Freedom Annual Review, sponsored by the international Center for law and religion studies at BYU law. I’ll be speaking about the future of religious exemptions after Fulton. Details are available here: https://religiousfreedom.byu.edu/presenters. CLR friends, stop by and say hello!

“The New Disestablishments”

A new draft paper, building on some work I’ve done on the nature of “establishment” today, its relationship to free exercise and exemption from general law, and particularly the idea of establishment as “regime” in classical political theory. One of the more controversial claims in the paper is that inquiries about “religion” as a legal category are no longer worthwhile from a scholarly perspective (though they continue of course to be highly necessary from a practical, lawyerly perspective), except as a way to conceive the shifting dynamics of power within the regime. Here’s the abstract:

“The individual has complete autonomy of choice respecting matters of sex, gender, and procreation. The findings of science as established by the knowledge class, together with the preferences of that class in this domain, should be imposed on everyone. These views reflect two central creeds of the new establishment. They, or statements like them, are the basis for policies across the nation touching many walks of life, from business to education, media, advertising, health care and medicine, and more.

Whether these propositions and others like them constitute a “religious” establishment is irrelevant. To be sure, there are arguments that it is religious. But the hypertrophy of the concept of religion in American law has made the legal category “religion” so malleable as to render it useless as an analytical tool. And, at any rate, religious belief responds to the world in which it is situated. When that world tells dissenting citizens that their beliefs are irrational, anti-scientific, and benighted—and, indeed, that their objections to new establishment creeds are discreditable because they are religious—dissenters may be forgiven for taking the world at its word. If these dissenting views are religious, it is the new establishment that has made them so and, in consequence, entangled itself in religious controversy.

Free exercise exemption has been thought a way to resist the new establishment. Yet the dynamics of resistance are ambiguous. Individual exemption—unless connected to a larger strategy—can validate and strengthen the new establishment, entrenching the supplicant position of the exempted. Many advocates of exemption do not object to this state of affairs. They insist that they have no interest in disrupting the new establishment. They are committed to it, too. Yet partisans of the new establishment are not wrong to sense possible danger from expanding rights of free exercise. These rights, if synthesized and organized, could become broader pockets and sub-communities of disestablishment. There is a continuum between free exercise and disestablishment. Dissenting positions on the family, education, religion, sex and gender, and others might be stitched together from the disaggregated set of free exercise exemption micro-victories to constitute challenges to the new establishment. To do that, however, would demand concerted action involving some mechanism other than exemption, and it is not plain that advocates of religious exemption are interested in that project. But the project may be coming whether they like it or not. Unlike the new establishmentarians, some free exercise advocates have not adequately appreciated (or do not wish to see) that the real fight is not about an individual exemption here or there, but about the future shape of the American establishment.”

Of Montaigne and Liberal Tolerance

Following on Marc’s recent posts on skepticism and knowledge, here is an interesting-looking new book from Notre Dame Press: What Happened to Civility: The Promise and Failure of Montaigne’s Modern Project, by philosopher Ann Hartle (Emory). As Donald Frame once observed, Montaigne expressed skepticism about customs and culture (“Que sais-je?”), but never about the ultimate authority of the Church and its teachings about eternal life. In fact, accepting certain background assumptions about eternal truths may have allowed Montaigne space to tolerate diverse opinions about wordly things. In her new book, Hartle suggests that what she calls Montaigne’s project of “civility” depends on taking “sacred tradition” for granted. Perhaps, as a practical matter, liberal tolerance requires that a society accept certain assumptions without debate, so that doubt can be expressed on other subjects. What do I know? It’s worth thinking about.

Here is the publisher’s description:

What is civility, and why has it disappeared? Ann Hartle analyzes the origins of the modern project and the Essays of Michel de Montaigne to discuss why civility is failing in our own time.

In this bold book, Ann Hartle, one of the most important interpreters of sixteenth-century French philosopher Michel de Montaigne, explores the modern notion of civility—the social bond that makes it possible for individuals to live in peace in the political and social structures of the Western world—and asks, why has it disappeared? Concerned with the deepening cultural divisions in our postmodern, post-Christian world, she traces their roots back to the Reformation and Montaigne’s Essays. Montaigne’s philosophical project of drawing on ancient philosophy and Christianity to create a new social bond to reform the mores of his culture is perhaps the first act of self-conscious civility. After tracing Montaigne’s thought, Hartle returns to our modern society and argues that this framing of civility is a human, philosophical invention and that civility fails precisely because it is a human, philosophical invention. She concludes with a defense of the central importance of sacred tradition for civility and the need to protect and maintain that social bond by supporting nonpoliticized, nonideological, free institutions, including and especially universities and churches. What Happened to Civility is written for readers concerned about the deterioration of civility in our public life and the defense of freedom of religion. The book will also interest philosophers who seek a deeper understanding of modernity and its meaning, political scientists interested in the meaning of liberalism and the causes of its failure, and scholars working on Montaigne’s Essays.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In a unanimous decision, the Supreme Court ruled that the City of Boston violated the First Amendment when it rejected an application to fly a Christian flag on one of the flagpoles in front of city hall.
  • In Navy SEAL 1 v. Austin, a D.C. federal district court refused to grant a preliminary injunction to bar discharge or other adverse action against a Navy SEAL who refuses, for religious reasons, to comply with the military’s COVID-19 vaccine mandate.
  • In Cobranchi v. City of Parkersburg, a West Virginia federal district court held that Parkersburg’s City Council violated the Establishment Clause by opening its meetings with The Lord’s Prayer.
  • In South Central Conference of Seventh Day Adventists v. Alabama High School Athletic Association, suit was filed in an Alabama federal district court by the Seventh Day Adventist Oakwood Academy after it was forced to forfeit a semifinal game in the state tournament due to observance of the sabbath.
  • In State of Louisiana v. Spell (Parish of East Baton Rouge), the Louisiana Supreme Court quashed bills of information that had been issued against a pastor, charging him with violating the government’s COVID-19 orders during the pandemic.
  • Times of Israel reported last week that the Israel Religious Action Center is suing an ultra-Orthodox Jewish news website because of its policy of digitally blurring the faces of females in news photos it posts. The news site claims it blurred the faces in order to observe religious doctrines regarding modesty.

After Science and Religion

The relationship between science and religion is complex, often since at least the Enlightenment at least represented as one of conflict or tension, but also by some (perhaps in response) as one of fundamental synthesis or unity. Certainly, the tension has been in evidence relatively recently in some of the most prominent law and religion contests of our own day.

A new volume edited by Professors Peter Harrison and John Milbank collects a variety of interesting looking essays on the subject: After Science and Religion: Fresh Perspectives from Philosophy and Theology (CUP 2022).

“The popular field of ‘science and religion’ is a lively and well-established area. It is however a domain which has long been characterised by certain traits. In the first place, it tends towards an adversarial dialectic in which the separate disciplines, now conjoined, are forever locked in a kind of mortal combat. Secondly, ‘science and religion’ has a tendency towards disentanglement, where ‘science’ does one sort of thing and ‘religion’ another. And thirdly, the duo are frequently pushed towards some sort of attempted synthesis, wherein their aims either coincide or else are brought more closely together. In attempting something fresh, and different, this volume tries to move beyond tried and tested tropes. Bringing philosophy and theology to the fore in a way rarely attempted before, the book shows how fruitful new conversations between science and religion can at last move beyond the increasingly tired options of either conflict or dialogue.”

Why Religion is Good for Democracy

We hear a lot these days about how religion threatens American democracy. The view almost amounts to a consensus in some parts of the academy. But that was not always the case. For most of American history, observers have thought that religion, and religious communities especially, help promote democracy. That was Tocqueville’s view, obviously, and he wrote the most insightful description of American society ever.

A new book from Princeton, Why Religion Is Good for American Democracy, by leading sociologist Robert Wuthnow, picks up the theme. Anything from Wuthnow is worth reading, and this new book looks like no exception. Here’s the description from the publishers website:

Does religion benefit democracy? Robert Wuthnow says yes. In Why Religion Is Good for American Democracy, Wuthnow makes his case by moving beyond the focus on unifying values or narratives about culture wars and elections. Rather, he demonstrates that the beneficial contributions of religion are best understood through the lens of religious diversity. The religious composition of the United States comprises many groups, organizations, and individuals that vigorously, and sometimes aggressively, contend for what they believe to be good and true. Unwelcome as this contention can be, it is rarely extremist, violent, or autocratic. Instead, it brings alternative and innovative perspectives to the table, forcing debates about what it means to be a democracy.

Wuthnow shows how American religious diversity works by closely investigating religious advocacy spanning the past century: during the Great Depression, World War II, the civil rights movement, the debates about welfare reform, the recent struggles for immigrant rights and economic equality, and responses to the coronavirus pandemic. The engagement of religious groups in advocacy and counteradvocacy has sharpened arguments about authoritarianism, liberty of conscience, freedom of assembly, human dignity, citizens’ rights, equality, and public health. Wuthnow hones in on key principles of democratic governance and provides a hopeful yet realistic appraisal of what religion can and cannot achieve.

At a time when many observers believe American democracy to be in dire need of revitalization, Why Religion Is Good for American Democracy illustrates how religious groups have contributed to this end and how they might continue to do so despite the many challenges faced by the nation.

Defer to the Experts? Think for Yourself?

Think for yourself! Follow the Science! How do we know when to trust expertise and when to be skeptical? What measure of confidence should we place in institutional and disciplinary knowledge in an age of institutional and disciplinary breakdown? What is knowledge, fundamentally, and what is its value?

Here is an interesting historical and philosophical treatment of these difficult questions: Don’t Think for Yourself: Authority and Belief in Medieval Philosophy (Notre Dame Press) by Professor Peter Adamson, forthcoming this fall. It focuses on the relationship of authority and knowledge in the medieval world, arriving at something of an intermediate position on the merits.

“How do we judge whether we should be willing to follow the views of experts or whether we ought to try to come to our own, independent views? This book seeks the answer in medieval philosophical thought.

In this engaging study into the history of philosophy and epistemology, Peter Adamson provides an answer to a question as relevant today as it was in the medieval period: how and when should we turn to the authoritative expertise of other people in forming our own beliefs? He challenges us to reconsider our approach to this question through a constructive recovery of the intellectual and cultural traditions of the Islamic world, the Byzantine Empire, and Latin Christendom.

Adamson begins by foregrounding the distinction in Islamic philosophy between taqlīd, or the uncritical acceptance of authority, and ijtihad, or judgment based on independent effort, the latter of which was particularly prized in Islamic law, theology, and philosophy during the medieval period. He then demonstrates how the Islamic tradition paves the way for the development of what he calls a “justified taqlīd,” according to which one develops the skills necessary to critically and selectively follow an authority based on their reliability. The book proceeds to reconfigure our understanding of the relation between authority and independent thought in the medieval world by illuminating how women found spaces to assert their own intellectual authority, how medieval writers evaluated the authoritative status of Plato and Aristotle, and how independent reasoning was deployed to defend one Abrahamic faith against the other. This clear and eloquently written book will interest scholars in and enthusiasts of medieval philosophy, Islamic studies, Byzantine studies, and the history of thought.”