Barclay on Religious Exemptions and Hate 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 Stephanie Barclay (Notre Dame) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

One enduring question of liberal democracies is how to reconcile the tension between claims to authority by the rulers and claims to liberty by the governed. [1] Debates about the validity of religious exemptions often play out as a microcosm of this larger discussion. Some, such as the late Justice Antonin Scalia, have argued that a country would be “courting anarchy” if it too generously provided exemptions to legal rules based on religious objections.[2] At the other end of the spectrum, the United States Supreme Court has also recognized that “[t]hose who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”[3] I have argued elsewhere that a legal regime which never provides religious exemptions is primed to increase human suffering and decrease human dignity by penalizing (or making impossible) actions individuals feel they must (or must not) take to comply with higher divine mandates.[4]

One standard answer to the broader dilemma of reconciling authority and liberty is what some scholars term the consent proposition,[5] also reflected in social contract theory that pervades thinking by luminaries such as Locke, Hobbes, Rousseau, and Rawls. This proposition is embodied in the American Declaration of Independence as a “self-evident truth”—that “Governments . . . deriv[e] their just powers from the consent of the governed.” On this account, consent is often emphasized as the sole source of political legitimacy of a legal regime.  Steven Smith has surveyed problems with the consent proposition as an unpersuasive fiction if we are looking for consent on the level of an autonomous individual born into a legal community.[6] But that might be looking to the wrong unit of the populace (just one lone individual) to give consent. As Richard Ekins has explained in his work on joint action theory, groups can act in purposeful ways where a body like “the people” can consent to certain frameworks—like a constitution—for self-governance. To be a free people, the people in the singular is the ruler and agent, and the people in the plural are the ruled and the principals.[7] And for the consent of the group action to be legitimate, the people must have meaningful opportunities to change the legal rules they’ve put in place in the future.

Assuming consent by the people can resolve the tension between authority and liberty generally, how can religious exemptions be provided in a way that is consistent with this type of self-governance? One obvious answer is the use of legislative religious exemptions. Through this method, the people can act jointly in a deliberative manner to protect space for religious exercise where frequent conflicts (and often high-stakes conflicts) can arise between authority and the liberty of a religious objector. In Early American history, the United States offered exemptions from the draft to Quakers who objected on religious grounds to military service.[8] Religious exemptions can be offered in more mundane contexts, like tax exemptions for churches, when the people may judge that excluding some religious institutions from some obligations provides relevant goods to society in other important ways.

While critically important, legislative religious exemptions present some shortcomings. One is that they are usually more attuned to the needs of majoritarian religious groups (or at least large and well-known religious groups) than minority religious groups. For the conflict between authority and religious liberty to have been significant enough to have garnered legislative attention, it’s reasonable to assume that those sorts of conflicts are most obvious when a significant portion of the population shares the belief that gave rise to that conflict. For example, many prisons recognize religious exemptions for kosher dietary requirements. But few recognize exemptions for a Kemetic diet required by adherents of Shetaut Neter.[9] A second limitation is that some types of religious objections result from unexpected applications of a law. These conflicts are thus unlikely to involve a legislative compromise in advance that includes a religious exemption. Third, many government policies are promulgated by agencies, rather than legislatures. Scholars like Philip Hamburger have noted that these less politically accountable institutions are often less sympathetic to the need to craft religious exemptions that would apply to new policies.[10]

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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.

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!

A New Collection of Essays on Law and Religion

This new collection of essays from Cambridge, Law as Religion, Religion as Law, looks interesting. The basic thrust of the volume is that the demands of law and religion do not oppose one another but, in fact, overlap and complement one another. That’s certainly true sometimes! The editors are scholars David Flatto and Benjamin Porat, both of Hebrew University. The publisher’s description follows:

The conventional approach to law and religion assumes that these are competing domains, which raises questions about the freedom of, and from, religion; alternate commitments of religion and human rights; and respective jurisdictions of civil and religious courts. This volume moves beyond this competitive paradigm to consider law and religion as overlapping and interrelated frameworks that structure the social order, arguing that law and religion share similar properties and have a symbiotic relationship. Moreover, many legal systems exhibit religious characteristics, informing their notions of authority, precedent, rituals and canonical texts, and most religions invoke legal concepts or terminology. The contributors address this blurring of law and religion in the contexts of political theology, secularism, church-state conflicts, and the foundational idea of divine law. This title is also available as Open Access on Cambridge Core.

An Intellectual History of the Ja’fari School

The Ja’fari School represents the principal method of jurisprudence in Shi’a Islam and the official source of Islamic law under the Iranian Constitution. It is comparatively less well known among students of Islamic law in the West, who tend to focus on the four Sunni schools of fiqh. A new book from Harvard, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law, offers an intellectual history of the school’s founder, the eighth century scholar Jaʿfar al-Ṣādiq. The author is Near Eastern Studies Professor Hossein Modarressi (Princeton). Here is the description from the publisher’s website:

Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law examines the main characteristics of the legal thought of Imam Jaʿfar al-Ṣādiq, a preeminent religious scholar jurist of Medina in the first half of the second century of the Muslim calendar (mid-eighth century CE). Numerous works in different languages have appeared over the past half century to introduce this school of Islamic law and its history, legal theory, and substance in contexts of Shīʿī law.

While previous literature has focused on the current status of the school in its developed and expanded form, this book presents an intellectual history of how the school began. The Jaʿfarī school emerged within the general legal discourse of the late Umayyad and early Abbasid periods, but was known to differ in certain approaches from the other main legal schools of this time. Namely, the Jaʿfarī school expanded the tools for legal interpretation generally and contracts specifically, to a degree unmatched by any of its counterparts in the Muslim legal tradition. In addition to sketching the origins of the school, the book examines Jaʿfar al-Ṣādiq’s interpretive approach through detailing his position on a number of specific questions, as well as the legal canons, presumptions, and other interpretive tools he adopted.

New from Munoz on Religious Liberty and the Founding

This month, the University of Chicago Press releases a new book by our friend, Vincent Phillip Munoz (Notre Dame), Religious Liberty and the American Founding. A few years ago, we hosted an online symposium on Phillip’s work on the Founder’s understanding of the natural right of religious liberty–what the right entailed and what it did not entail–and his new book continues to address that subject. Looks very interesting. The publisher’s description is below. Congrats, Phillip!

An insightful rethinking of the meaning of the First Amendment’s protection of religious freedom.

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.

A New Work on the Ministerial Exception

Ten years ago, in Hosanna-Tabor, the U.S. Supreme Court ruled that the First Amendment’s Religion Clauses prohibit the state from interfering with the decisions of religious organizations with respect to the employment of “ministers.” In two more recent cases, Our Lady of Guadalupe School and Biel, the Court returned to the question of which employees, exactly, qualify as ministers, but did not announce a clear test. The debate about how far the exception extends thus seems certain to continue. A forthcoming book from Routledge, The Church and Employment Law, by John Duddington (Cardiff), considers the question and takes a comparative approach to the subject. The book is the latest in the valuable ICLARS Series on Law and Religion. Here is the description from Routledge:

This book examines the current law on the employment status of ministers of religion and suggests reforms in this area of the law to meet the need for ministers to be given a degree of employment protection. The work considers the constant theme in Christian history that the clergy should not be subject to the ordinary courts and asks whether this is justified with the growth of areas such as employment law. The work questions whether it is possible to arrive at a satisfactory definition of who is a minister of religion and, along with this, who would be the employer of the minister if there was a contract of employment. Taking a comparative perspective, it evaluates the case law on the employment status of Christian and non-Christian clergy and assesses whether this shows any coherent theme or line of development. The work also considers the issue of ministerial employment status against the background of the autonomy of churches and other religious bodies from the State, together with their ecclesiology.  The book will be of interest to academics and researchers working in the areas of law and religion, employment law and religious studies, together with both legal practitioners and human resources practitioners in these areas.

The New Thoreaus

I’ve just posted a new draft essay, “The New Thoreaus,” to SSRN. The essay, which will appear in a forthcoming symposium in the Loyola University Chicago Law Journal, discusses the Rise of the Nones and argues that community is crucial to defining religion for legal purposes. Abstract below. Comments welcome!

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the 19th Century Transcendentalist, Henry David Thoreau, would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly 66 million people—now claim, like Thoreau, to follow our own, idiosyncratic spiritual paths. The New Thoreaus already have begun to appear in the cases, including recent vaccine mandate challenges, and courts will increasingly face the question whether purely idiosyncratic beliefs and practices qualify as religious for legal purposes. In this essay, I argue that Yoder’s insight was basically correct: the existence of a religious community is a crucial factor in the definition of religion. Religion cannot mean an exclusively communal phenomenon; a categorical rule would slight a long American tradition of respecting individual religious conscience and create difficult line-drawing problems. Nonetheless, the farther one gets from a religious community, the more idiosyncratic one’s spiritual path, the less plausible it is to claim that one’s beliefs and practices are religious, for legal purposes.

A New Book on Roger Scruton

Back in 2017, we were fortunate enough to host Sir Roger Scruton here at the Center, when he delivered the keynote address and participated in workshops at the second meeting of the Tradition Project, on culture and citizenship. (A video of Sir Roger’s remarks is available here). Later this year, Palgrave Macmillan will release Politics and Art in Roger Scruton’s Conservative Philosophy, a new study of Sir Roger’s philosophical legacy, covering subjects as diverse as politics, art, music, and religion–all of which Sir Roger discussed that night in 2017, as I remember. The author is philosopher Ferenc Horcher (Hungarian Academy of Sciences). Here’s the publisher’s description:

This book covers the field of and points to the intersections between politics, art and philosophy. Its hero, the late Sir Roger Scruton had a longstanding interested in all fields, acquiring professional knowledge in both the practice and theory of politics, art and philosophy. The claim of the book is, therefore, that contrary to a superficial prejudice, it is possible to address the philosophical issues of art and politics in the same oeuvre, as the example of this Cambridge-educated analytical philosopher proves.

Accordingly, the book has a bold thesis on the general, theoretical level, mapping the connections between politics, art and philosophy. However, it also has a pioneering commitment on the level of the particular, offering the first full-length study into the philosophical legacy of Roger Scruton, probably the most important British conservative philosopher of the late 20th and the first decades of the 21st century. It also allows reader to look into the philosopher’s fascination with Central European art and culture. Finally, it also provides a daring analysis of the late Scruton’s metaphysical inspirations, connecting the arts, and especially music, with religion and the bonds of love.

A New Translation of Ficino

This is more in Marc’s wheelhouse than mine, but here goes. Marsilio Ficino was a Renaissance humanist, director of the new iteration of Plato’s Academy that Cosimo de Medici tried to establish in Florence and tutor to Cosimo’s son, Lorenzo the Magnificent. The Florentine Renaissance was an attempt to meld pagan and Christian thought; like many such attempts, it was extraordinarily productive but quite unstable, as Savonarola, another Florentine, demonstrated. This new translation of Ficino’s work, On the Christian Religion, to be released by the University of Toronto Press later this year, looks very interesting. The translators are Dan Attrell and David Porecca, both of the University of Waterloo, and independent scholar Brett Bartlett. Here’s the publisher’s description:

This is the first translation into English of Marsilio Ficino’s De Christiana religione, a text first written in Latin in 1474, the year after its author’s ordination in the Roman Catholic Church. On the Christian Religion is this Florentine humanist’s attempt to lay out the history of the religion of Christ, the Logos (“Word” or “Reason”), in accordance with the doctrines of ancient philosophy. The work focuses on how Christ in his pre-incarnate form was revealed as much to certain ancient pagan sages and prophets as to those of the Old Testament, and how both groups played an equal role in foreshadowing the ultimate fulfillment of all the world’s religions in Christianity.

The first part elucidates the history of the prisca theologia – the ancient theology – a single natural religion shared by the likes of Zoroaster, Hermes Trismegistus, Orpheus, Aglaophemus, Pythagoras, and Plato, and how it was fulfilled by Christ’s incarnation and the spread of his Church through his apostles. The second part of the work, however, constitutes a series of attacks against the ways in which the Old Testament were variously interpreted by Islamic and, more importantly, Jewish sages who threatened Ficino’s own Christological interpretations of Scripture.

This new English translation includes an introduction that situates the text within the broader scope of Ficino’s intellectual activity and historical context. The book allows us to encounter a more nuanced image of Ficino, that of him as a theologian, historian, and anti-Jewish, anti-Islamic, anti-pagan polemicist.