Writeup of Last Week’s Event in Trent

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Last week’s gathering at the Fondazione Bruno Kessler in Trent, Italy

 

The Fondazione Bruno Kessler has posted this report of our conference on tradition and traditionalism in American and Russian thought. The conference, at the Fondazione’s headquarters in Trent, Italy, was a very worthwhile event. The discussions revealed significant differences, and some similarities, in how American and Russian scholars perceive tradition and tradition’s proper role in law and politics.

For me, the most interesting discussions were those that revealed the differences among us. From the American side, some of us were concerned with carving out space for traditional communities in the larger society; others were more interested in placing tradition at the center of legal debate. Some argued that tradition is already more central to that debate than it sometimes seems.

On the Russian side, some participants took the Russian Church’s recent advocacy of traditional values as a serious critique of liberalism, one that resonates with consistent themes in Orthodox thought. Others, by contrast, argued that “traditional values” are a recent, post-Soviet construct, even a pretext.

The Postsecular Conflicts Project will publish an online collection of participants’ essays later this year. Meanwhile, let me say thanks again, on behalf of the Center, to Kristina Stoeckl, Pasquale Annicchino, Marco Ventura, and their very capable staffs, for being such good hosts. Let’s do it again soon!

Center Co-Sponsoring Conference on Tradition in America and Russia Next Week in Trent

Tradition ProjectNext week, Marc and I will travel to the Italian city of Trent for an important conference, “Tradition and Traditionalisms Compared,” at the Fondazione Bruno Kessler. The conference, which our Center’s Tradition Project is co-sponsoring with the Postsecular Conflicts Project at the University of Innsbruck, will gather scholars and commentators from the US and Europe to consider the competing understandings of tradition in American and Russian law and politics. It’s a great lineup of participants, and with all that’s going on in the world today, a very timely topic.

From the Tradition Project, aside from Marc and me, the participants include Patrick Deneen (Notre Dame), Rod Dreher (The American Conservative), Michael Moreland (Villanova), and Adrian Vermeule (Harvard). The other participants are listed in the conference program, which you can find here. From the papers people have submitted, it looks like we will have a candid and productive discussion on deep issues–exactly what one hopes for in a scholarly community.

We’ll have a report on the conference after the event. Meanwhile, let me say that we’ve been delighted to plan this program with Kristina Stoeckl (Innsbruck) and Pasquale Annicchino (EUI), and that we look forward to seeing everyone in Trento next week!

Tradition and Traditionalisms Compared: A Joint Program of the Tradition Project and the Post-Secular Conflicts Project

Tradition Project

I’m very pleased to announce this conference, to be held in Trento, Italy, on June 12-13, which my colleague, Mark Movsesian, and I are putting on jointly with Professor Kristina Stoeckl of the University of Innsbruck, Professor Pasquale Annicchino of the European University Institute, and Professor Marco Ventura, the Head of the Religious Studies Program at the Fondazione Bruno Kessler.

The conference will compare tradition and traditionalism in the Anglo-American and Russian historical experience (for those who do not know Professor Stoeckl’s very fine book on Russian Orthodoxy and human rights, allow me to recommend it). Mark and I will have more by and by with the meeting’s proceedings.

There is something fitting about American and Russian scholars descending on the Dolomites and the locus of the Concilium Tridentinum to discuss and reflect on the respective traditions that they study.

Fake Law

Though that could well describe President Trump’s “Executive Order on Religious Liberty” issued yesterday, I have something different in mind in this article. A bit:

Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law’s legitimacy and the warping of judges’ self-understanding of their constitutional role.

Save the Date: Sir Roger Scruton Keynotes The Tradition Project, Part II

Tradition ProjectRoger ScrutonPlease save the date for Sir Roger Scruton’s keynote address for the second part of The Tradition Project, which will focus on “Tradition, Culture, and Citizenship.” Sir Roger will open our conference with a lecture on the evening of Thursday, November 2, 2017, at the New York Athletic Club. Further details will be forthcoming in the fall. Please write to me or Mark if you are interested in attending.

For more about Part II of The Tradition Project, see this post. And for an illuminating treatment of Sir Roger’s thought across the decades, see this recently published piece in The New Criterion.

Movsesian at William & Mary Law Last Week

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Thanks to Alan Meese and Nate Oman for hosting me last week at a symposium on Nate’s important new book, “The Dignity of Commerce.” (That’s me, above, interacting with the author). I learned a great deal. Nate has been a guest blogger here at the Law and Religion Forum, and it was good to catch up with him and with Alan, and to make some new friends. The symposium will appear later this year.

Symposium Papers on Law and Religion in an Increasingly Polarized America

The Lewis and Clark Law Review, with the guidance of Professor Jim Oleske, has put together a very nice symposium on Law and Religion in an Increasingly Polarized America. Very interesting papers by Kathleen Brady, Kent Greenawalt, Jessie Hill, Andy Koppelman, Ron Krotoszynski, Chip Lupu and Bob Tuttle, Jim Oleske, and Robin Wilson.

I’ve got a piece in there too, Religious Accommodation, Religious Tradition, and Political Polarization, which takes a somewhat critical look at the religious accommodation regime from, as it were, the other side.

Boersma on Religious Law Schools

pictureCongratulations to our former Law and Religion Fellow, John Boersma (left), for placing his article, The Accreditation of Religious Law Schools in Canada and the United States, in the current issue of the BYU Law Review. John, who’s now pursuing a PhD at LSU, wrote the paper in my comparative law and religion seminar a couple years ago.

Here’s the abstract:

Ongoing litigation in Canada suggests that the legal status of religiously affiliated law schools could be in jeopardy. In Canada, regulatory authorities have sought to deny accreditation status to a religiously affiliated law school (Trinity Western University) due to its commitment to a traditional Christian understanding of marriage. According to Canadian provincial authorities, this commitment has a discriminatory effect on LGBT students. Similar events could potentially occur in the United States. It is possible that American regulatory bodies could seek either to rescind or withhold accreditation from a religiously affiliated law school because of the discriminatory effects of its policies.

This comparative Article argues that as a matter both of public policy and law, the regulatory bodies concerned with the accreditation of law schools in both Canada and the United States have ample reason to accredit religiously affiliated law schools. First, as a matter of public policy, diversity in the type of law schools is beneficial due to the pluralism it engenders. Pluralism has long been recognized as a force for social stability in liberal democracies and is continually cited as beneficial by both Canadian and American courts. Furthermore, as a matter of law, both Canada and the United States provide for a robust protection of religious freedom that encompasses religiously affiliated law schools. This Article concludes that, as a result, regulatory authorities in Canada and the United States ought to encourage the proliferation of religiously affiliated law schools.

Readers can download the article here. Keep up the good work, John!

Thoughts on Conference on “Faith, Sexuality, and the Meaning of Freedom”

I am just back from a conference at Yale Law School organized jointly by Professors Robin Wilson and Bill Eskridge on “Faith, Sexuality, and the Meaning of Freedom,” and I offer here some general thoughts about the presentations and the nature of the conference. While the conference’s rules do not permit me to get into specifics about who said what, my overall impression is that it was a gathering of academics, politicians, religious leaders, and practitioners drawn from a comparatively broad spectrum of political, religious, and cultural opinion. Robin and Bill are to be commended, in my view, for that balance–always difficult to achieve to everyone’s satisfaction.

One of the conference’s launch points was the fairly recent report by the US Commission on Civil Rights entitled, “Peaceful Coexistence: Reconciling Nondiscrimination Principles With Civil Liberties,” but which did not contain, in my view, very much sound advice for achieving peaceful coexistence or reconciliation. All of the panels concerned the topic of achieving modus vivendi arrangements for the proper legal accommodation of rights of religious liberty and rights of sexual freedom and equality. This has been a large and important part of Robin’s own policy work over the last few years, and the so-called Utah Compromise was studied and considered in this respect.

Two things stood out for me in particular.

First, one of the more interesting debates among the group, and, it seems to me, going forward, is about the baseline question of what constitutes the sort of discrimination that the law ought to proscribe in the first place. Once a particular judgment is found to be proscribable discrimination (I suppose the term is “invidious”), the result is all but foreordained. Some argued that the motivation for a particular discrimination is irrelevant; so long as the effect is adverse action against a person within a designated protected category, that ought to be sufficient. Others returned that this was in effect stacking the deck. The first question must be whether somebody has engaged in invidious discrimination at all, and that this is not a question about motivation but about how we properly describe the discrimination that the person has made. Barronelle Stutzman’s case is one example of this sort of debate, and this brief authored by Professor Steve Smith addresses the question. But the larger issue of the baseline affects many sorts of discriminations that people make in other contexts. Suppose, for example, that a hospital refuses to perform a surgery to remove the healthy uterus of a woman who identifies as transgender and desires to become a man. Is that the sort of discrimination on the basis of sexual orientation that the law should condemn? Or is it nothing of the kind–is it simply a judgment that hospitals do not remove healthy uteruses–and certainly nothing like a hospital’s refusal to perform heart bypass surgery on a woman who identifies as transgender?

Second, one of the pervasive themes of the conference was the conflict between perfectionist and anti-perfectionist accounts of liberalism, and whether perfectionist liberalism is in its ascendancy at the moment. As is well-known, Robin, in her work with others like Professor Douglas Laycock and some of our own MOJ colleagues, has worked tirelessly to hammer out compromises that reflect a judicious anti-perfectionist liberalism. But my sense, in some ways confirmed by this conference, is that perfectionist accounts of liberalism (indeed, perfectionist accounts of politics in general) cannot really ever be sidelined. My own inclinations have always been rather pessimistic when it comes to true pluralism in a liberal democratic nation, even as I deeply appreciate the work of Robin and others. I believe strongly that the expressive and symbolic power of the law is an extremely important feature of it–what the law says about its people, what its people are proud of it to say, always lurks as a sort of subtext beneath the surface of whatever modus vivendi arrangements we might achieve. It is a mistake to ignore that subtext, as it will otherwise only come frothing and bubbling up at unexpected moments.

My own presentation involved what is seemingly a somewhat esoteric topic–Article XI of the Treaty of Tripoli–which begins with the statement that “[T]he government of the United States of America is not, in any sense, founded on the Christian Religion.” Part of my talk involved the history of Article XI (which is fascinating) but part suggested that the fight over American identity that the phrase (and many phrases like it) has come to represent–and the symbolic and expressive force of the law–is both a substantial impediment to anti-perfectionist liberal democratic governance and an inevitable and important feature of any government worth the name. More on this soon, I hope.

Michael McConnell, “Tradition and the Constitution”

Here is a story with some details of the Center’s Tradition Project conference last week-end, which also links to pictures of the event and various recent reflections by conference participants.

And here is Professor Michael McConnell’s lecture, “Tradition and the Constitution”:

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