Posted on by Marc O. DeGirolami

Obedience and Freedom

It’s probably fair to say that most people today regard obedience and freedom as antonyms, and that obedience is regarded as the bad side of that duality. We might even say that we are free just insofar as we obey no one, except perhaps ourselves or our own will. Going further, obedience seems like the kind of orientation to the world that depends upon there being unquestionably rightful authority, but perhaps we don’t regard authority, any authority, in that way any longer–as having unquestionably right claims on us. Sometimes obedience is thought to be a kind of mindless servility or rote submission, though older conceptions of obedience incorporated an important element of free choice. Is it then not obedience if one chooses to submit oneself to the authority whom one obeys? Again, that position would assume that choice and obedience are necessarily antagonists, but the structures of authority to which one might voluntarily submit oneself might actually make one more free to achieve certain objectives than one would be without the submission (think here of the structures of excellence in sports or writing or some other practice).

Ok, enough already. I raise all this in light of an interesting new book by Jacob Phillips, Obedience is Freedom (Polity Press). The abstract is below, and here is an interesting review of the book that came out a few months back.

The virtue of obedience is seen as outdated today, if not downright toxic – and yet, are we any freer than our forebears?

In this provocative work, Jacob Phillips argues not. Many feel unable to speak freely, their opinions policed by the implicit or explicit threat of coercion. Impending ecological disaster is the ultimate threat to our freedoms and wellbeing, and living in a disenchanted cosmos leaves people enslaved to nihilistic whim. Phillips shows that the antiquated notion of obedience to the moral law contains forgotten dimensions, which can be a source of freedom from these contemporary fetters. These dimensions of obedience – such as loyalty, discipline and order – protect people from falling prey to the subtle forms of coercion, control and domination of twenty-first-century life.

Fusing literary insight with philosophical discussion and cultural critique, Phillips demonstrates that in obedience lies the path to true freedom.

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Around the Web

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

  • In Yeshiva University v. YU Pride Alliance, Supreme Court Justice Sotomayor stayed a New York trial court’s injunction that required Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. For further details, please see last week’s posting here. 
  • In Chabad Chayil, Inc. v. School Board of Miami-Dade County, Florida, the 11th Circuit affirmed the district court’s dismissal of free exercise, equal protection, and due process claims brought by a Jewish organization that ran an after-school Hebrew program for more than ten years using public school classrooms. In dismissing the claims, the district court held that plaintiff had not shown the elements necessary to assert liability against either the school board or the Inspector General’s office that investigated complaints against Chabad. 
  • In Chabad Lubavitch of the Beaches, Inc. v. Incorporated Village of Atlantic Beach, a New York federal district court granted a preliminary injunction, concluding that an attempt to acquire the property of a Jewish religious group by eminent domain likely violated the group’s First Amendment free exercise rights. Eminent domain proceedings were initiated shortly after Chabad held a Menorah lighting ceremony on the property. 
  • In Chaaban v. City of Detroit, Michigan Department of Corrections, a Michigan federal district court denied a motion in a RLUIPA case for reconsideration of the denial of qualified immunity to corrections officers who forced a Muslim woman to remove her hijab for a booking photograph. 
  • In Braidwood Management Inc. v. Becerra, a Texas federal district court held that the ACA mandate for health insurance coverage of PrEP drugs violates the rights, under the Religious Freedom Restoration Act, of a for-profit corporation whose owner believes that providing such coverage for his employees would make him complicit in their same-sex conduct and sexual activity outside of marriage. 
  • In Christian Medical & Dental Association v. Bonta, a California federal district court held a provision in the California End of Life Option Act likely unconstitutional. The provision requires doctors (who refuse on conscience, moral or ethical grounds to participate in procedures set out by the act) to document in a patient’s record the date of the patient’s request for an aid-in-dying drug. This notation serves as one of two required requests by a patient before the patient may obtain the drug. The court rejected the argument that this violates the free exercise rights of medical providers who object on religious grounds and dismissed both equal protection and due process challenges. However, the court did conclude that plaintiffs are likely to succeed in their free speech challenges to the requirement. The court issued a preliminary injunction barring state enforcement of the requirement against objecting health care providers. 
Posted on by Marc O. DeGirolami

Walsh on Juridical Post-liberalism and Ius

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Kevin C. Walsh (Catholic University of America School of Law) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

I have three goals with this set of brief reflections for our first session on “Liberalism’s Limits: Religious Exemptions and Hate Speech.” One is to suggest the possibility of a smooth transition to a form of juridical post-liberalism in societies rooted historically in political liberalism. A second is to sketch out a few distinctions that will be helpful for us in analyzing particular questions of law and right related to religious exemptions and hate speech. The third is to offer a couple of suggestions about the potential practical utility of attending to these broader theoretical considerations. Those suggestions relate to the question of how to understand the role of dignitary harm in law, a matter that sometimes arises at the intersection of religious exemptions and hate speech.

I. Overcoming liberalism through transformation from within the juridical domain

When things are coming apart, it is natural to consider what endures. We are thinking about the limits of political liberalism because it looks like liberal polities are coming apart. We are interested in how to understand and to navigate whatever change it is that we are going through. In considering the limits of liberalism in connection with religious exemptions and hate speech, I focus first on the possibility of overcoming liberalism through transformation from within the juridical domain. Are there ways that faithful (in the sense of loyal, oath-bound) participants in a liberal society’s legal justice system not only may operate entirely without reliance on foundational premises of political liberalism, but also may actively reframe those elements of the legal justice system in its practical operation that push toward reliance on such premises?

To answer this, we first need a working understanding of political liberalism. This way we can know what we are asking lawyers and judges to do without. For this, I will draw on Leo Strauss, who wrote: “If we may call liberalism that political doctrine which regards as the fundamental political fact the rights as distinguished from the duties of man, and which identifies the function of the state with the protection or the safeguarding of those rights, we must say that the founder of liberalism was Hobbes.” [1]

From this formulation, we can isolate two Fs of political liberalism. First is the Fundamental Political Fact of individual rights as distinguished from duties, with rights taking priority over duties. Second is the Function of the State as the protecting or safeguarding of each individual’s individual rights. [2]

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Posted on by Mark Movsesian

Liturgy Matters

I thought I was reasonably well informed about the English Reformation, but a new book from Yale recounts an episode of which, I confess, I had never heard, the Prayer Book Rebellion of 1549, in which the people of Cornwall and Devon revolted when the government forbade Latin liturgies and required use of the new, English-language Book of Common Prayer. The government quickly put down the rebellion–but at the cost of 4000 lives. I’m not sure if the rebellion passed out of general knowledge, or if their antipathy to Catholicism led the Framers to pass over it, but I have never seen a reference to the Prayer Book Rebellion in the Framers’ frequent warnings about the dangers of establishment. Odd, because the rebellion seems a good example of such dangers–as well as the importance of liturgy to religious identity. Few things matter more to believers than the language they use to pray, as current controversies in the Catholic and other Christian churches reveal even today.

The book is A Murderous Midsummer: The Western Rising of 1549, by historian Mark Stoyle (University of Southampton). The publisher’s description follows:

The fascinating story of the so-called “Prayer Book Rebellion” of 1549 which saw the people of Devon and Cornwall rise up against the Crown

The Western Rising of 1549 was the most catastrophic event to occur in Devon and Cornwall between the Black Death and the Civil War. Beginning as an argument between two men and their vicar, the rebellion led to a siege of Exeter, savage battles with Crown forces, and the deaths of 4,000 local men and women. It represents the most determined attempt by ordinary English people to halt the religious reformation of the Tudor period.

Mark Stoyle tells the story of the so-called “Prayer Book Rebellion” in full. Correcting the accepted narrative in a number of places, Stoyle shows that the government in London saw the rebels as a real threat. He demonstrates the importance of regional identity and emphasizes that religion was at the heart of the uprising. This definitive account brings to life the stories of the thousands of men and women who acted to defend their faith almost five hundred years ago.

Posted on by Marc O. DeGirolami

Pojanowski on Authenticity and Free Speech

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Jeffrey Pojanowski (Notre Dame) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

Consider two very different works of art. The first is the 1943 Norman Rockwell painting, Freedom of Speech. There, a workman in a New England town hall stands resolute amid his nattier neighbors, preparing to say his piece. The painting’s model was the Arlington, Vermont farmer, Jim Edgerton, the sole dissenter to the town selectmen’s decision to build a new school. This painting, one in a series commemorating Roosevelt’s “Four Freedoms,” links freedom of speech with republican self-governance, deliberation about a shared good, and an idea of equality that elevates the dignity of the common man to the plane of his more aristocratic fellow citizens. Edgerton’s mien is reminiscent of Lincoln.

The second is a 2002 Joseph Frederick banner, 14-feet-long and emblazoned with the message “BONG HiTS 4 JESUS.” This banner, which the Juneau, Alaska high school senior created just before he displayed it at an Olympic torch parade, was, in the words of its creator, “just nonsense meant to attract television cameras.” The Supreme Court of the United States explained that this message, displayed at a school-sponsored event, could be reasonably understood as advocating illegal drug use, but it was “plainly not a case about political debate over the criminalization of drug use or possession.” Over a vigorous dissent, the Court held that the First Amendment did not prohibit Frederick’s school from disciplining Frederick. Frederick’s claim links free speech with a bare right of self-expression, even if the message that the autonomous self seeks to assert is admittedly “nonsense.” Frederick is reminiscent of Cartman.

Frederick could be forgiven for thinking he could prevail, which he did before the Court of Appeals. The Supreme Court has interpreted the First Amendment as protecting lying about military honors, virtual child pornography, and crush films (don’t google the term). Now, this protective agnosticism in the Court’s doctrine need not reflect a deep skepticism about truth or beauty; it could flow from a sincere interpretation of the Constitution’s positive-law strictures or reflect prudential worries about empowering government to limit speech. There are many threads in American free speech jurisprudence and culture. Even so, one of the more vibrant ones is the notion that expression is good for its own sake, is self-constituting, and that interferences with, or even judgments about, such autonomous expression in the name of standards outside the self are unjustified and tyrannical.

This thread in jurisprudence and culture has given rise to powerful post-liberal critiques of free speech. Neutrality, the argument goes, is impossible because it presupposes this postmodern celebration of standard-less self-assertion and substantively demands its enforcement through law and culture. Alternatively, even if it does not share such premises, it is no defense against that worldview’s imperialistic designs. To invoke Fr. Richard John Neuhaus’s “law”: “Where orthodoxy is optional, orthodoxy will sooner or later be proscribed.” This debate about the compatibility of liberal legal forms like free speech protections and non-liberal culture is challenging, fascinating, and important, and I am hesitant to claim I have anything important to add, especially through short-form scholarship. Rather, I would like to suggest that even those who celebrate—or regard as irreversible—modernity’s departure from more fixed, prescriptive ways should pause before drawing a straight line from liberal individualism to free speech libertarianism. (A caveat: I am operating here primarily at the level of normative argument, not legal doctrine. I don’t claim, and am not qualified to claim, to offer an argument about the best reading of the First Amendment and/or its subsequent implementing doctrines.)

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Legal Spirits Episode 043: The New Thoreaus

In this episode, Marc interviews Mark about his new article, “The New Thoreaus,” on the rise of the Nones and its impact on free-exercise law. Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously dismissed the idea that a solitary seeker–the Court gave the 19th Century Transcendentalist Henry David Thoreau as an example–could qualify as a “religion” for constitutional purposes. “Religion,” the Court explained, means a communal activity, not a purely personal quest. Mark argues that recent demographic changes in America have made this question an urgent one. Perhaps 66 million Americans today are unaffiliated believers–people who, like Thoreau, reject organized religion and follow their own, idiosyncratic spiritual paths–and more and more of them seek “religious” exemptions, including in the context of recent vaccine mandates. Mark examines some of these cases and argues that Yoder‘s dicta was basically correct: although religion cannot be an exclusively collective activity, the existence of a religious community is a crucial factor in the definition of religion for legal purposes. Listen in!

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Posted on by Marc O. DeGirolami

Ekins on Some Features of Liberalism in a Censorious Age

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Richard Ekins (Oxford) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

Some features of liberalism in a censorious age 

The nominal promise of liberalism is political fairness and, relatedly, social peace, in which persons with different religious, moral, political, and philosophical commitments will be free to live as they please. The promise is illusory insofar as one cannot coherently exclude questions about the good from public life, including from (deliberation about) the exercise of public power. And in fact, we do not live in a golden age of freedom of conscience or freedom of speech. On the contrary, we live in an increasingly censorious age, as Jonathan Sumption puts it,[1] in which uniformity of thought or opinion is sought by way of abuse of dissenters in the press or social media, or by direct public (legal) action. This short paper reflects on some developments within liberalism, understood loosely as a tradition of political thought and practice, which may help explain the censorious temper of our times and the way in which religion and hate speech are understood.

In one influential form, political liberalism aims to bracket questions about what is truly worth acting for – questions that involve controversial substantive commitments – and instead to ground law and government on thin propositions that are fair to all comers. For Ronald Dworkin, the fundamental principle of political morality is that government should show equal concern and respect to all persons. This requirement, he says, rules out public actions that entail or presuppose the judgement that some way of life is vicious or debased and/or that some moral choices are truly better than others. Public actions of this kind, Dworkin maintains, fail to show equal concern and respect.  

This line of argument forms a main element in the jurisprudence of contempt,[2] in which a court or jurist reasons that to act on moral grounds is to act unfairly, in a way that is incompatible with the respect for persons and the freedom that equality demands they enjoy. Judicial review of legislation is justified, on this view, in order to police majoritarian legislatures, who are otherwise tempted to act unfairly, double-counting the preferences of some citizens about how others are to live, and/or reducing others to the status of second-class citizens by rejecting their commitments. The argument is unpersuasive because one cannot avoid the need for moral judgement in lawmaking and governing and to act for what one sincerely takes to be the good, including the good of the person one limits or punishes, in no way involves contempt for those who think otherwise.[3] Further, the argument wrongly frames the reasons on which a legislature acts as preferences, which have a place in collective action only insofar as fairness permits. The aim is to disbar political unfairness; the effect, even if the proscription were applied evenly,[4] would be to prevent justice.  

What is important to note, I think, is (a) the reduction of reasons to preferences and (b) the claim that in acting on (controversial) moral reasons one displays contempt for others. The upshot is that political liberalism is primed to see moral action as an insult or an unfair abuse of process. It is no surprise then that the moral significance of intention is often lost from view, with actions sometimes branded discrimination or harassment regardless of the intentions on which the person acted, per the premise that our actions are often sub-rational with real motivations hidden from us. [5] It is thus easy to frame those with whom one disagrees, or fears, as irrational and in need of correction. 

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Posted on by Mark Movsesian

Movsesian to Appear at UT-Austin Later This Month

A programming note: later this month, I’ll present my paper, “The New Thoreaus,” at the Bech-Loughlin First Amendment Center at the University of Texas School of Law. The paper discusses the increase in the number of unaffiliated believers–people who reject organized religion and follow their own spiritual paths–and whether the Free Exercise Clause should apply to them. Details are here. Very much looking forward to this. Center friends in Austin, please stop by and say hello!

Posted on by Marc O. DeGirolami

“Traditionalism Rising” at the Volokh Conspiracy This Week

At Eugene’s kind invitation, I’ll have several posts this week at the Volokh Conspiracy excerpting and summarizing my new article, Traditionalism Rising. The first post is here, defining traditionalism and locating it in the Court’s 2021 term cases. Here’s a bit:

The piece builds on and extends a larger project about constitutional traditionalism developed in earlier papers (here and here), as well as in a broader research program, The Tradition Project, that my colleague (and Volokh co-conspirator) Mark Movsesian and I have pursued over several years at our Center for Law and Religion. I’ve been a dedicated reader of the Volokh Conspiracy since I was a law prof pup, so it is a pleasure for me to contribute something.

My posts will: (1) define traditionalism and locate it in the Supreme Court’s work this past term; (2) compare traditionalism and originalism, particularly what the paper calls “liquidated originalism”; (3) address traditionalism’s “level of generality” problem, the problem how to select the operative tradition; (4) offer several justifications for traditionalism; (5) consider the problem of traditionalism’s politics. Most of the material is excerpted or summarized from the article, but I invite readers to look at the piece for the full-dress argument. I welcome reactions to the paper, which is still a draft.

What is traditionalism? When people hear the word tradition connected to law, they sometimes think of judicial restraint, or deference, or minimalism (or “Burkeanism”), or some vaguer injunction to “go slow” or respect stare decisis and the interests served by it. Or they may think of approaches to particular clauses or parts of the Constitution—to the Due Process Clause, for example, or to Justice Frankfurter’s “tradition” approach to inherent executive power.

Traditionalism is different from all of these. Traditionalism is a unified approach to determining constitutional meaning and constitutional law with two central elements: (1) concrete practices, rather than principles, ideas, judicial precedents, legal rules, and so on, as the determinants of constitutional meaning and law; and (2) the endurance of those practices as a composite of their age, longevity, and density, evidence for which includes the practice’s use before, during, and after enactment of a constitutional provision.

Posted on by Marc O. DeGirolami

Delsol, “The Insurrection of Particularities, Or, How the Universal Comes Undone”

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” with our longtime partner, Università di Roma LUMSA. The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers.

The distinguished political historian and philosopher, Chantal Delsol, gave a keynote address for the conference. We are delighted to publish her talk here. The address is in French, and I link to the original below. With Professor Delsol’s permission, I have translated it for our English speaking readers (the footnotes remain in the original).

Chantal Delsol’s original piece in French can be found hereDownload

The Insurrection of Particularities, Or, How the Universal Comes Undone

Rome, July 8, 2022

Chantal Delsol

1.

On October 18, 2017, the French National Assembly adopted the State Law on Religious Neutrality. Article 11 provides that an accommodation for reasons of religion may be granted if 5 criteria are satisfied: the request is serious; the requested accommodation respects the equality of men and women, as well as the principle of religious neutrality of the State; the accommodation is not excessively constraining; and the requester has actively participated in finding a solution. By the same token, there will be no accommodation with respect to the obligation of all employees of the State to work with their faces uncovered and without wearing any religious sign.

One sees here the extent to which the legislator struggles to preserve as far as possible State neutrality tied to secularism, without actually achieving it, and doing so less and less. We are today on a kind of slope, which is the subject of our conference today: that which was accorded an exception more and more becomes the rule. The Quebecois speak of “reasonable accommodations,” to underline well that one should not surpass the limits of good sense. The example is cited in France of the authorization given for prayer in the streets which stops traffic. So, too, laws forbidding the scheduling of exams for students during the holidays of various religions, which made one journalist say, “soon only February 29 will be left to schedule exams.” The question is in fact posed about the diversity and plurality of exemptions, but that is only a subsidiary question consequent on others. These concessions, which raise a vision of equality solely constituted of privileges, interrogate our vision of the universal, and finally our way of being a society.

Our societies appear more and more to be aggregations of minorities disparate in every respect (they may be social, sexual, religious, or cultural, etc.). And everything happens as if the goal of governments is nothing more than to establish equality among these groups, which, always claiming and becoming indignant about not obtaining enough, monopolize public space. At this point, leaving behind Tocqueville who feared a tyranny of the majority, we could, as Philippe Raynaud put it, [1] fall into a tyranny of minorities.

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