May 26, 2022 - LAW AND RELIGION FORUM

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.”

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.