Posted on by Marc O. DeGirolami

Modernity’s Religious Inheritance

From the eminent philosopher, Michael Rosen, comes this fascinating looking intellectual history of religion’s profound and enduring influence on modernity–focusing especially on the 18th and 19th centuries, post-Kantian German Idealism, and the idea of “historical immortality.” The book is The Shadow of God: Kant, Hegel, and the Passage from Heaven to History (Harvard UP 2022).

Once in the West, our lives were bounded by religion. Then we were guided out of the darkness of faith, we are often told, by the cold light of science and reason. To be modern was to reject the religious for the secular and rational. In a bold retelling of philosophical history, Michael Rosen explains the limits of this story, showing that many modern and apparently secular ways of seeing the world were in fact profoundly shaped by religion.

The key thinkers, Rosen argues, were the German Idealists, as they sought to reconcile reason and religion. It was central to Kant’s philosophy that, if God is both just and assigns us to heaven or hell for eternity, we must know what is required of us and be able to choose freely. In trying to live moral lives, Kant argued, we are engaged in a collective enterprise as members of a “Church invisible” working together to achieve justice in history. As later Idealists moved away from Kant’s ideas about personal immortality, this idea of “historical immortality” took center stage. Through social projects that outlive us we maintain a kind of presence after death. Conceptions of historical immortality moved not just into the universalistic ideologies of liberalism and revolutionary socialism but into nationalist and racist doctrines that opposed them. But how, after global wars and genocide, can we retain faith in any conception of shared moral progress and, if not, what is to become of the idea of historical immortality? That is our present predicament.

A seamless blend of philosophy and intellectual history, The Shadow of God is a profound exploration of secular modernity’s theistic inheritance.

Posted on by L&R Forum

Around the Web

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

  • The U.S. Supreme Court denied review in St. Augustine School v. Underly, in which the Seventh Circuit remanded a suit challenging Wisconsin’s refusal to provide bus transportation to students at St. Augustine School.
  • In Al Saud v. Days, the Ninth Circuit rejected claims under RLUIPA and the First Amendment brought by a Muslim inmate who sought to be housed only with other Muslim inmates. Plaintiff contends he is currently unable to pray as required by his religion because inmates he is housed with harass him while he prays. 
  • In Tucker v. Faith Bible Chapel International, the Tenth Circuit held that interlocutory appeals from the denial of a ministerial exception defense are not permitted. In the case, a former high school teacher and chaplain contends that he was fired for opposing alleged racial discrimination by a Christian school. 
  • In In the Matter of United Jewish Community of Blooming Grove, Inc. v. Washingtonville Central School District, a New York state appellate court held that under New York statutory law, school districts are not required to provide bus transportation to private school students on days when private schools are in session, but public schools are closed. 
  • In McKinley v. Grisham, a New Mexico district court allowed plaintiffs to move forward with their Free Exercise challenge to restrictions on in-person gatherings at houses of worship. 
  • The EEOC announced that it has filed suit against Del Frisco’s of Georgia, an Atlanta restaurant, for refusing to accommodate an employee’s religious beliefs.
Posted on by Mark Movsesian

Religion and the American Constitutional Experiment (New Edition)

Last month, Oxford released a new, fifth edition of Religion and the American Constitutional Experiment. Our friend Rick Garnett (Notre Dame) joins our friends John Witte (Emory) and Joel Nichols (St. Thomas) on this edition, which is current through 2021 and covers the COVID-19 epidemic, among other recent developments. Here’s the publisher’s description:

This accessible and authoritative introduction tells the American story of religious liberty from its colonial beginnings to the latest Supreme Court cases. The authors analyze closely the formation of the First Amendment religion clauses and describe the unique and enduring principles of the American experiment in religious freedom – liberty of conscience, free exercise of religion, religious equality, religious pluralism, separation of church and state, and no establishment of religion. Successive chapters map all of the 240+ Supreme Court cases on religious freedom – covering the free exercise of religion; the roles of government and religion in education; the place of religion in public life; and the interaction of religious organizations and the state. The concluding reflections argue that protecting religious freedom is critical for democratic order and constitutional rule of law, even if it needs judicious balancing with other fundamental rights and state interests.

Clear, comprehensive, multidisciplinary, and balanced, this classic volume is an ideal classroom text. This new 5th edition addresses fully the new hot-button issues and cases on religious freedom versus sexual liberty; religious worship in the time of COVID; freedom of conscience and exemption claims; state aid to religion; religious monuments and ceremonies in public life; and the rights and limits of religious groups.

Posted on by Mark Movsesian

Movsesian on Legal Docket on Dobbs

For those interested, I sat down today (virtually!) with journalist Mary Reichard at the Legal Docket podcast (a feature of “The World and Everything In It”) to discuss the Dobbs leak and why it so damages the Supreme Court as an institution. Here’s an excerpt:

MOVSESIAN: I know that people will look at this and say the important thing is abortion, why do we care that the justices are embarrassed? And I think that’s because, you know, people who think that way may not appreciate just how much is being undone, when members of the court think they cannot deliberate in confidence, when members of the court think that they can’t engage in a good faith discussion of the issues with their colleagues on the court, I think that really does threaten to destroy the institution in a way that will have very bad consequences for our law.

You can listen to the whole episode here.

Posted on by Marc O. DeGirolami

Religious Freedom at the Founding

Here’s a new book right in the heartland of our projects at the Center by longtime Center friend and contributor Professor Vincent Phillip Muñoz, Religious Liberty and the American Founding: Natural Rights and the Original Meaning of the First Amendment Religion Clauses (Chicago Press forthcoming). I had the pleasure of reading a good chunk of this manuscript, and it is excellent on both the historical and theoretical sides of things. The work is deeply informed by Phillip’s prior work on the idea of natural rights at the founding and of their proper scope. It is probably fair to say that the scope of natural rights on Phillip’s account, at least for some of the significant rights we discuss today, is generally (not always) significantly narrower than what we tend to believe today. Tough and chewy, but small and digestible, might be a possible description (the blurb below says “minimalist”). That view of natural rights certainly has a powerful impact on the claims in this worthwhile book.

The Founders understood religious liberty to be an inalienable natural right. Vincent Phillip Muñoz explains what this means for church-state constitutional law, uncovering what we can and cannot determine about the original meanings of the First Amendment’s Religion Clauses and constructing a natural rights jurisprudence of religious liberty.  

Drawing on early state constitutions, declarations of religious freedom, Founding-era debates, and the First Amendment’s drafting record, Muñoz demonstrates that adherence to the Founders’ political philosophy would lead neither to consistently conservative nor consistently liberal results. Rather, adopting the Founders’ understanding would lead to a minimalist church-state jurisprudence that, in most cases, would return authority from the judiciary to the American people. Thorough and convincing, Religious Liberty and the American Founding is key reading for those seeking to understand the Founders’ political philosophy of religious freedom and the First Amendment Religion Clauses.

Posted on by L&R Forum

Around the Web

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

  • The U.S. Supreme Court denied review in Community Baptist Church v. Polis, a free exercise challenge to COVID restrictions imposed by Colorado. The challenge was brought by two churches and one of their pastors.
  • In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, New York, the Second Circuit affirmed the dismissal, on ripeness grounds, of a suit challenging two zoning laws that prevented plaintiff from building a rabbinical college on its property.
  • In Universal Life Church Monastery Storehouse v. Nabors, the Sixth Circuit allowed a lawsuit to go forward challenging a Tennessee law that prohibits persons who receive online ordination from solemnizing marriages.
  • The Seventh Circuit heard oral arguments in Halczenko v. Ascension Health, Inc., in which a pediatric intensive care doctor is seeking a religious exemption from a hospital’s COVID vaccination requirement . 
  • The Council on American-Islamic Relations Michigan Chapter (“CAIR-MI”) announced that a settlement has been reached in a suit charging the city of Ferndale’s police department with forcibly removing a Muslim woman’s hijab for a booking photo after her arrest.
  • Virginia Governor Glen Younkin, has signed House Bill 1063, which broadly defines “religion” in the state’s civil rights laws to include actions and expressions, not just personal beliefs.
Posted on by Mark Movsesian

A New History of the Transcendentalists

The 19th century Transcendentalists cast a long shadow in American religious culture. Their insistence that the individual is the sole measure of religious truth has greatly affected our law as well, notwithstanding Chief Justice Burger’s famous dismissal of Henry David Thoreau in Wisconsin v. Yoder. And you might say Transcendentalism is having a moment today, with the rise of the Nones, a movement that represents a mainstreaming of many ideas bruited about in Concord parlors in the 1830s and 40s.

A new history from Farrar, Straus and Giroux, The Transcendentalists and their World, by Robert Gross (University of Connecticut) situates the Transcendentalists in their hometown, showing the ways that their daily interactions influenced their ideas. Looks very interesting. Here is the publisher’s description:

In the year of the nation’s bicentennial, Robert A. Gross published The Minutemen and Their World, a paradigm-shaping study of Concord, Massachusetts, during the American Revolution. It won the prestigious Bancroft Prize and became a perennial bestseller. Forty years later, in this highly anticipated work, Gross returns to Concord and explores the meaning of an equally crucial moment in the American story: the rise of Transcendentalism.

The Transcendentalists and Their World offers a fresh view of the thinkers whose outsize impact on philosophy and literature would spread from tiny Concord to all corners of the earth. Ralph Waldo Emerson, Henry David Thoreau, Nathaniel Hawthorne, and the Alcotts called this New England town home, and Thoreau drew on its life extensively in his classic Walden. But Concord from the 1820s through the 1840s was no pastoral place fit for poets and philosophers.

The Transcendentalists and their neighbors lived through a transformative epoch of American life. A place of two thousand–plus souls in the antebellum era, Concord was a community in ferment, whose small, ordered society founded by Puritans and defended by Minutemen was dramatically unsettled through the expansive forces of capitalism and democracy and tightly integrated into the wider world. These changes challenged a world of inherited institutions and involuntary associations with a new premium on autonomy and choice. They exposed people to cosmopolitan currents of thought and endowed them with unparalleled opportunities. They fostered uncertainties, raised new hopes, stirred dreams of perfection, and created an audience for new ideas of individual freedom and democratic equality deeply resonant today.

The Transcendentalists and Their World is both an intimate journey into the life of a community and a searching cultural study of major American writers as they plumbed the depths of the universe for spiritual truths and surveyed the rapidly changing contours of their own neighborhoods. It shows us familiar figures in American literature alongside their neighbors at every level of the social order, and it reveals how this common life in Concord entered powerfully into their works. No American community of the nineteenth century has been recovered so richly and with so acute an awareness of its place in the larger American story.