Our conference, “Liberalism’s Limits: Religious Exemptions and Hate Speech,” which we co-sponsored with LUMSA last week in Rome, was a great success. We will publish some of the conference proceedings after giving the participants time to revise their contributions. In the meanwhile, here is an interesting interview conducted by Radio Vaticana with Professors Cesare Mirabelli (President Emeritus of Italy’s Constitutional Court and one of our keynote speakers) and our colleague, friend, and conference co-organizer, Professor Monica Lugato, about the conference and our broader projects.

The interview is in Italian, but I’m taking the liberty of translating loosely a portion of what Professor Lugato said to give our English-speaking readers a sense of the proceedings: “This conference was in a line of academic projects undertaken jointly by our universities dating from 2014 [and as early as 2012] with the idea of discussing some central and complex themes concerning the problem of living together–of how to live together in societies marked today by substantial pluralism. The objects of this general theme have been conferences concerning aspects of religious freedom as well as the legal and political implications of the concept of tradition. Within this general line of inquiry, it was natural to confront the problems of the limits of liberalism, and in particular liberalism’s tendency to render absolute certain individual liberties. Some of the questions asked at the conference might be grouped into two categories: on the one hand, questions about whether liberalism, at least in its classical sense, has exhausted itself; and on the other hand, questions about whether liberal political and legal systems demand certain limits on individual liberties just in order to survive as liberal systems, and what those limits might be.”

A new draft paper, building on some work I’ve done on the nature of “establishment” today, its relationship to free exercise and exemption from general law, and particularly the idea of establishment as “regime” in classical political theory. One of the more controversial claims in the paper is that inquiries about “religion” as a legal category are no longer worthwhile from a scholarly perspective (though they continue of course to be highly necessary from a practical, lawyerly perspective), except as a way to conceive the shifting dynamics of power within the regime. Here’s the abstract:

“The individual has complete autonomy of choice respecting matters of sex, gender, and procreation. The findings of science as established by the knowledge class, together with the preferences of that class in this domain, should be imposed on everyone. These views reflect two central creeds of the new establishment. They, or statements like them, are the basis for policies across the nation touching many walks of life, from business to education, media, advertising, health care and medicine, and more.

Whether these propositions and others like them constitute a “religious” establishment is irrelevant. To be sure, there are arguments that it is religious. But the hypertrophy of the concept of religion in American law has made the legal category “religion” so malleable as to render it useless as an analytical tool. And, at any rate, religious belief responds to the world in which it is situated. When that world tells dissenting citizens that their beliefs are irrational, anti-scientific, and benighted—and, indeed, that their objections to new establishment creeds are discreditable because they are religious—dissenters may be forgiven for taking the world at its word. If these dissenting views are religious, it is the new establishment that has made them so and, in consequence, entangled itself in religious controversy.

Free exercise exemption has been thought a way to resist the new establishment. Yet the dynamics of resistance are ambiguous. Individual exemption—unless connected to a larger strategy—can validate and strengthen the new establishment, entrenching the supplicant position of the exempted. Many advocates of exemption do not object to this state of affairs. They insist that they have no interest in disrupting the new establishment. They are committed to it, too. Yet partisans of the new establishment are not wrong to sense possible danger from expanding rights of free exercise. These rights, if synthesized and organized, could become broader pockets and sub-communities of disestablishment. There is a continuum between free exercise and disestablishment. Dissenting positions on the family, education, religion, sex and gender, and others might be stitched together from the disaggregated set of free exercise exemption micro-victories to constitute challenges to the new establishment. To do that, however, would demand concerted action involving some mechanism other than exemption, and it is not plain that advocates of religious exemption are interested in that project. But the project may be coming whether they like it or not. Unlike the new establishmentarians, some free exercise advocates have not adequately appreciated (or do not wish to see) that the real fight is not about an individual exemption here or there, but about the future shape of the American establishment.”