It’s been another productive academic year at the Mattone Center. The most important news, of course, is the transformational, multimillion dollar gift from Denise and Michael Mattone, for whom the Center is now named. We have also been busy with podcasts, blog posts, public events, faculty appearances, and writing. To read all about it, please check out our annual year-end report, below. Thanks!
On Tradition and Jack Balkin
At Law & Liberty today, I review Yale Law Professor Jack Balkin’s new book on tradition in constitutional law, Memory and Authority. Balkin makes some good points. He correctly describes how lawyers and judges use tradition in practice, and is right that the appeal of tradition–which is often multifarious and contested–depends on whether listeners feel connected to the past in the first place. But, I argue, Balkin’s definition of tradition is so elastic that it sometimes seems he isn’t talking about tradition at all:
For example, he praises Obergefell v. Hodges, which held that the Constitution confers a right to same-sex marriage, for its correct use of tradition. True, there is no “history of specific legal guarantees for same-sex marriage in American law.” But he argues that American tradition should be understood in a broader, more sensitive way, as a commitment to animating principles. The Obergefell Court correctly saw that the reasons why Americans historically have supported marriage generally obtained in the new context of same-sex marriage as well, and applied those reasons to reach a satisfactory present-day result. One can “alter or even reject existing practices,” he writes, “while being faithful to the country’s traditions of liberty.”
Now, one can praise or criticize the Court’s reasoning in Obergefell. But to paraphrase something Grant Gilmore said about Oliver Wendell Holmes in a different context, the magician who can traditionalize Obergefell can, the need arising, traditionalize anything. Tradition refers to concrete practices and accommodations that endure across time in a community, not abstractions like “liberty” or “equality” or “dignity” or “justice.” And one cannot plausibly claim that same-sex marriage is an American tradition in that sense. One must choose which traditions to follow and which to discard; that is the essence of modernity. But one cannot decide a case according to an abstract, indeterminate principle and call oneself a traditionalist. One may as well say that one is doing something new—that one is deciding a case based on one’s normative commitments and leave it at that.
You can read the review here.
A Video of This Month’s Panel on Kennedy v. Bremerton School District
For those who are interested, here’s a writeup of this month’s panel discussion on SCOTUS’s recent school-prayer case, Kennedy v. Bremerton School District, with panelists Stephanie Barclay (Notre Dame), Marc DiGirolami (CUA), and Mattone Center Director Mark Movsesian. Among the topics discussed: the end of the endorsement test, the meaning of the Court’s new history-and-tradition test, and the lingering problem of coercion. A video of the panel is below. Listen in!
Barclay and DeGirolami at St. John’s Next Week
I’m delighted to announce that next week the Center will welcome Stephanie Barclay (Notre Dame), and welcome back Marc DeGirolami (Catholic University), for a discussion of the recent school prayer case, Kennedy v. Bremerton School District (2022). Details about the event, which the Center will co-host with the St. John’s Journal of Catholic Legal Studies, are here (registration is required). Friends of the Center, drop by and say hello!
Making American Religion Moderate
At the Law & Liberty site this morning, I review a new documentary on the history of religious freedom in America, “Free Exercise.” The film shows how minority religious communities–Catholics, Mormons, and others–have changed America over time. But, I argue, America has changed minority religions as well. Here’s an excerpt:
ike the Quakers, who went from being bottle-breaking radicals to sober citizens, Catholics and Mormons themselves changed in ways that made them less threatening to the American majority. One major point of contention between the Catholic Church and the wider American society had to do with religious liberty itself. The nineteenth-century Church was the Church of the Syllabus of Errors (1864), a papal document that condemned freedom of conscience and the separation of church and state as dangerous heresies. America’s Protestant majority saw this document and the values it espoused as hostile to fundamental American commitments. In the 1928 campaign, The Atlantic published an open letter questioning whether a Catholic like Smith could serve as president, citing the Syllabus and other papal pronouncements on church and state.
A hundred years later, though, and largely through the efforts of American Catholics like Fr. John Courtney Murray, the Second Vatican Council adopted Dignitatis Humanae, a document that specifically endorses religious liberty as a civil right. Catholic scholars have argued that Dignitatis Humanae and the Syllabus of Errors can be interpreted consistently with one another and that, from a theological perspective, there was no change. However theologians understand the situation, though, after Dignitatis Humanae, something had indeed changed as a practical matter. A major point of tension between the Catholic Church and American culture had disappeared, largely because of American influence.
Or consider the LDS Church. A primary source of conflict between Mormons and the wider American society in the nineteenth century had to do with plural marriage, the issue in cases like Reynolds and Davis. In 1890, however, the LDS Church officially ended the practice—making it possible for Utah to be admitted as a state six years later. Practically speaking, Mormonism changed in a way that made it much less threatening to the wider American public. Mormons conformed to social convention, and relations between the LDS Church and other Americans have been better ever since.
What causes religions in America to move toward the mean over time? Some argue that the Lockean ideology that underlies our First Amendment is designed to encourage religious moderation—to minimize religious “enthusiasms” that threaten social peace. If that’s the case, Lockeanism certainly seems to be working. Or perhaps another factor explains things. Two hundred years ago, Tocqueville wrote about the strong pressures for social conformity that exist in the United States, where he observed “little independence of mind.” Whether as a result of ideology or social norms, or both, the pattern is apparent.
You can read the full essay here.
Spring 2024 Reading Group: Shakespeare’s “Measure for Measure”
I’m happy to announce the subject for this semester’s meeting of our Center’s Reading Group on Law and Religion: Shakespeare’s Measure for Measure. First performed 400 years ago, the play still has the capacity to shock. The questions it poses about political corruption, sexual harassment, and the relationship between law and religion remain relevant today, and the answers are just as elusive.
Please join us on March 26 to discuss this most problematic of Shakespeare’s “problem plays.” As always, we will provide copies of the book ahead of time, so registration is essential. Details are here.
Movsesian at Princeton Tomorrow
I’m looking forward to participating tomorrow in a film screening and panel discussion on the history of religious freedom in America at the James Madison Program at Princeton. Details above. Friends of the Forum, stop by and say hello!
Film Screening at Princeton Next Month
Next month at Princeton University, I’ll be participating in a film screening and panel discussion on religious liberty in the United States, “Free Exercise: America’s Story of Religious Liberty.” The event is sponsored by Princeton’s James Madison Program, where I spent a wonderful semester a few years ago. Details are available here. Friends of the Forum in the area, stop by and say hello!
Fed Soc Panel on 303 Creative
Thanks to the Federalist Society for inviting me to participate on a panel yesterday at the annual faculty conference, underway in Washington. I joined Amy Sepinwall (Wharton) and Dale Carpenter (Southern Methodist) for a discussion of 303 Creative, the wedding vendor case. Among the issues we addressed were the application of strict scrutiny to speech compulsions; the distinction between speech and conduct; and discriminating based on message vs. discrimination based on status. The video is linked below:
Thanks to A Gentleman and a Scholar
It has been one of the great experiences of my academic life to work alongside Marc DeGirolami for the past 13 years. A few years ago, when Marc received the inaugural Cary Fields Professorship here at St. John’s, I wrote about his talents as a tireless, thoughtful, and influential academic. I won’t repeat my comments, but I do want to thank Marc for teaching me so much about what it means to be a scholar. I will do my best to live up to his example, now that he is moving down I-95 to become the St. John Henry Newman Professor of Law and Co-Director of the Center for Law and the Human Person at Catholic University.
I also want to thank Marc for all his contributions to the Mattone Center. Whatever we have achieved here — this blog, as well as the many conferences, podcasts, colloquia, and webinars — has been a joint effort. And I want to thank Marc for the greatest gift of all: his steadfast friendship through thick and thin.
We’ll plan on continuing Legal Spirits — look for new episodes in 2024 — and collaborating on projects in the years ahead. For now, though, brother, congratulations to you and your new colleagues at Catholic, and Godspeed. I’ll miss you.