Just a note to thank the organizers of last week’s conference on religious liberty at the Loyola University Chicago Law Journal for hosting me. The event brought together a diverse group of scholars with truly differing points of view–something for which the organizers deserve a lot of praise. I presented a paper on the 50th anniversary this year of Wisconsin v. Yoder and received some very helpful comments. I look forward to seeing my essay in print in a forthcoming symposium edition of the Law Journal, and to reading the other participants’ papers!
Here’s a nice write-up of last week’s Reading Society session on C.S. Lewis’s “Learning in War-Time,” led by lawyer and scholar Mark Lanier of the Lanier Theological Library. Thanks to Mark for traveling to New York to lead the session and to and all who attended. The Reading Society will be back next semester. See you then!
Yesterday, a group of us from St. John’s gathered together to discuss C.S. Lewis’ famous sermon, “Learning in War-Time.” The event was one of the Center’s Reading Society gatherings, and we were lucky to speak together with Mark Lanier of the Lanier Theological Library in Houston, Texas. Mark brought up the original draft of Lewis’ sermon, hand-written and, in fact, only very lightly edited. I have attached the first page of the original below. One of many interesting insights one gains from the original is that at the very top, you can see a reference to “Deut XXVI:5 A Syrian ready to perish was my father.” This reference did not make it into the published lecture. But it is evocative of one of the themes of the sermon: the worth of seemingly frivolous or unwise activities (as learning and the pursuit of knowledge may at times seem to be) during a time of great danger, friction, and upheaval. The piece repays close and regular reading, for Christians and others alike. We were lucky to have the chance to reflect on it together.
I’m back from a superb conference orchestrated by Professor Helen Alvaré at the Liberty & Law Center at George Mason Law School on some of the current and future challenges and prospects in law and religion. I’ll have more to say about my paper, “The New Disestablishments,” by and by, but for the present I will note that I was grateful for improving and insightful criticisms from the group, including those of Professor Fred Gedicks, who was my commenter.
One of the things that occurred to me at the conference was that it seems a new school of thought about religious liberty is emerging in some young upstart scholars, in Australia. I’m only just coming to learn of The Australia School, and so I am going to miss what are new and interesting scholars in it. Indeed, calling it The Australia School assumes some kind of unity of thought, and I am certainly not suggesting there is such unity. But at the very least, The Australia School will include scholars like Professor Joel Harrison and his Post-Liberal Religious Liberty: Forming Communities of Charity; Professor Alex Deagon (who presented at the conference) and his From Violence to Peace: Theology, Law and Community; and Professor Neil Foster, who has written about when it is and is not appropriate for courts to decide matters that impinge on religious doctrine. I am missing many, I’m sure (and apologize preemptively to those I have not discussed). I don’t want to overgeneralize, but this is a blog post, and it would be boring not to offer at least some thematic observations about The Australia School. So are there any discernible themes?
Both Harrison and Deagon are deeply interested in Christian theological concerns, and both offer justifications for religious freedom rooted in theological considerations. Both rely on the work of John Milbank–not identically, but substantially. Indeed, I have a review over here of Harrison’s book, trying in summary form to describe the way Harrison reimagines religious freedom and devises justifications for it that are new and represent a different direction (with words of praise, though there was a criticism or two also!). Foster also is interested in the issue of the relationship of religious doctrine to civil power. And Deagon emphasizes issues of the unity of peaceful co-existence, also through a theological lens. Both the influence of Milbank on these scholars and their theological orientation are notable; I can discern only very few similarly oriented projects over in our corner of the world. One question I’ve been thinking about is just why.
As I say, I’m just learning about The Australia School and there are likely many differences and disagreements already emerging within it. But it’s a fresh and interesting development in the law and religion world.
I’m happy to be participating in this conference hosted by the Liberty & Law Center at George Mason Law School. I’ll present a paper called “Traditionalist Disestablishments,” a first step in combining my research interests in traditionalist constitutional interpretation with some of the developments occurring in law and religion at the moment. More soon on that. Here is the conference description:
In the United States today, religious individuals and institutions increasingly find themselves seeking exemptions from a wide array of laws and regulations burdening their free exercise. In this environment, it is important to ask about religion’s positive contributions to individuals and to society. The Liberty & Law Center is therefore hosting a two-day conference on March 24 & 25, 2022 at the Antonin Scalia Law School in order to explore several urgent questions: what goods and values does religious exercise further, including institutional exercise; how religious exercise can not only serve but sometimes better promote the values of equality, dignity, and freedom valorized by the state; and how religious institutions might better understand and communicate the social worth of religion and religious freedom.
Findings will be presented in four panels over the course of two days. To view the agenda and detailed list of speakers, click here. For questions about the event, please email firstname.lastname@example.org. We hope you’ll join us!
I’m just back from an excellent conference organized by Professor Cecelia Klingele at the University of Wisconsin on Catholicism and Criminal Law and Justice. The conference was sponsored jointly by the Lumen Christi Institute and Wisconsin’s Center for the Study of Liberal Democracy.
Together with fellow MOJ-er Patrick Brennan, we had a day of reflection and presentation of work concerning the theme. John Stinneford and I are having fun co-authoring a paper on “The Common Law, the Catholic Tradition, and the Criminal Law.” We discuss the idea of tradition in Catholicism and the common law, the important concept of “culpa” or blameworthiness within both traditions, and its evolution across time. More soon on this paper.
A programming note: I’m looking forward to participating in this upcoming symposium on religious liberty in Chicago later this spring. The editors of the Loyola University Chicago Law Journal have put together a great program and I’m honored to be among the contributors. Details below:
I’m happy to announce that my essay, “Law, Religion, and the COVID-19 Crisis,” is now available in the Journal of Law and Religion (Cambridge). The essay discusses courts’ responses to COVID restrictions on public worship worldwide, and what the response of American courts indicates about our deep polarization in this country. Here’s the abstract:
This essay explores judicial responses to legal restrictions on worship during the COVID-19 pandemic and draws two lessons, one comparative and one relating specifically to U.S. law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the United States specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID-19 crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-century pandemic.
In Public Discourse today, I have an essay that explains why the Court has declined to address claims that Covid vaccine mandates in places like Maine and New York violate the First Amendment. Here’s an excerpt:
The Court has not explained its reasons in these cases. But the justices’ caution is not surprising, for a few reasons. First, religious exemption claims generally pose hard questions, which are particularly troublesome in this context. The COVID-19 pandemic has intensified divisions about the value of religion and religious freedom in our country, and the justices might wish to avoid doing something to provoke further conflict. Second, the Maine and New York lawsuits are currently at the preliminary injunction stage, and the factual records in the cases are still unclear. The Court might reasonably think that it should allow the lower courts an opportunity to consider the claims further before it issues any rulings. Finally, the Court might think that state and local governments will themselves see the prudence of offering religious exemptions, as many already have done, considering the difficulties vaccine mandates have created for healthcare and other services.
You can read the whole essay here.
I have a little review essay just published by the American Journal of Jurisprudence with this title (Graham Greene, apologies) reviewing Professor Joel Harrison’s recent book, Post-Liberal Religious Liberty: Forming Communities of Charity (CUP 2020). A portion:
“[A]s Joel Harrison observes in his new book, the price extracted from traditional religion for these thawing relations with liberalism was steep. First, the substratum of Christian culture and historical connection with Western nations had to be systematically stripped away to clear a path for the new civil religion of the liberal regime—as Harrison says, a new “true religion” of the modern civic sphere to replace the old one. (24) Second, because traditional religion was always perceived as a threat to the liberal egalitarian political order, it was expanded by that order to encompass an increasing range of phenomena connected to one of liberalism’s own master commitments, individual autonomy. Religion was in this way at once domesticated and subsumed by liberalism, “contained” and trivialized by hypertrophy. (55) Institutional religion, Harrison continues, was “flattened” to what liberalism regards as the most basic constituent fragment, the individual believer. (55) Third, this new capaciousness had the effect of subjecting religion to an assortment of balancing tests at law, in which religion’s importance was perpetually weighed against sundry other quotidian interests. Religion was reduced to one more consideration, no more intrinsically weighty than any other, that the liberal authority could horse-trade and dole out as it pleased. Fourth, it was deemed out of order for government officials and even ordinary citizens to make public appeals to religious authority as a transcendent source of meaning and worth in the activities of the polity. These claims instead had to be translated into the “secular” argot of liberal commitments—“reconceived as just like any other claim of ethical freedom”—to gain admission to the liberal courts of law and politics. (11) If they could not be, they were cordoned off to the “private” sphere. (13)”