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Symposium on the Rise of the Nones and American Law

The Center for Law and Religion at St. John’s Law School invites you to attend:  The Rise of the Nones and American Law. Millions of Americans—perhaps as high as 30% of the adult population—now tell surveyors that they have no religious affiliation. Most of these Americans, the “Nones,” do not reject belief, but traditional religious organizations. They have their own, personal spiritual commitments that draw on many sources. The Nones, who are beginning to show up in the case law, have the potential to transform establishment and free exercise jurisprudence.  

Join us for a panel discussion about these issues with Professors Steven Collis (University of Texas Law School), Mark Movsesian (St. John’s), Gregory Sisk (University of St. Thomas School of Law), and Judge Mary Kay Vyskocil (U.S. District Court for the Southern District of New York).  This event is co-sponsored by the ST. JOHN’S JOURNAL OF CATHOLIC LEGAL STUDIES.  

Date
Thursday, March 23, 2023 

Time
5:30 – 8:30 p.m. 

Location
New York Athletic Club
180 Central Park South
New York, NY 10019 

Register to Attend
The event is free, but space is limited, so please register in advance (When registering, use password SPRING). 

Please see the following link for invitation details:Invitation
Posted on by Marc O. DeGirolami

Sixth Session of the CLR Reading Society: Miller’s “Canticle” & MacIntyre’s “After Virtue”

Mark and I are pleased to announce the sixth session of our CLR Reading Society, an opportunity open to all St. John’s Law Students to discuss works of fiction and non-fiction raising law and religion themes.

Our choice for this gathering is somewhat unusual, as it combines a work of science-fiction/fantasy and another of moral philosophy: the first story in Walter M. Miller, Jr.’s A Canticle for Leibowitz and selected chapters of Alasdair MacIntyre’s After Virtue: A Study in Moral Theory. A Canticle concerns a world ravaged by a series of environmental disasters, in which human knowledge and scientific achievement have not only been destroyed but are also blamed for the devastation by the Know-Nothing political power that survives. An order of obscure monks in the desert wasteland attempts to preserve and revive knowledge, but all its members have to go on are fragments of the past, disconnected from the theoretical structures of meaning and understanding within which they made sense. Miller’s tale about what recovery of learning in the ruins of such a civilization would look like was taken up by MacIntyre in After Virtue as the opening chapter’s inspiration for reflecting on the nature of moral and political disagreement today.

St. John’s Law students interested in the CLR Reading Society should contact Professor DeGirolami, marc.degirolami@stjohns.edu, or Professor Movsesian, movsesim@stjohns.edu. Books (both of them, for this session) are provided for free to students and all are welcome. We will meet on the evening of Tuesday, April 11, to discuss these works, so students who would like to join us and require books should write to us as soon as possible. Further details are forthcoming.

Posted on by Mark Movsesian

Last Week’s Panel on “Law and Religion at the Supreme Court”

Here’s a nice writeup on the law school website of last week’s panel, “Law and Religion at the Supreme Court: New Directions,” with Judges Richard Sullivan (CA2) and Rachel Kovner (EDNY). Thanks to everyone who turned out on a rainy night!

https://www.stjohns.edu/about/news/2023-02-02/center-law-and-religion-hosts-conversation-scotus-religion-cases

Posted on by Marc O. DeGirolami

The American Academy of Catholic Scholars and Artists

I am delighted to participate in a panel at the annual conference of the American Academy of Catholic Scholars and Artists which will be convened over the next few days. I’ll be responding to Professor Frank Beckwith’s fine lecture on the legacy of Dignitatis Humanae, the important (and still controversial) Vatican II Declaration of 1965 concerning religious freedom. I’m honored (and just a bit daunted) to be responding just after Professor J. Budziszewski, whose scholarly contributions to the philosophy of Thomas Aquinas have been a great help to me over the years. See, for example, his indispensable Commentary on Thomas Aquinas’s Treatise on Law and his Commentary on Thomas Aquinas’s Virtue Ethics.

I’m particularly excited to be part of this gathering because, by design, it combines scholarly and artistic/literary reflection on the many contributions of Catholicism. I have a new project, just now beginning to take shape (and about which more soon!) that, I hope, will reflect this union of interests and aims in its own way.

Posted on by Marc O. DeGirolami

“Public-Private Drift”

Here’s a new paper of mine, Public-Private Drift, examining the growing proclivity to blend public law and private law in order to mold behavior and coerce it into certain ideological grooves. The paper explores the phenomenon in a variety of contexts today. Here is the abstract:

The public law/private law divide is back. Scholars with a broad range of theoretical commitments are attempting to rediscover or reestablish the division. This paper approaches the public-private law problem by describing what it calls “drift.” Drift is the tendency of what is thought traditionally to be private law to become public (public drift), and the tendency of what is thought traditionally to be public law to become private (private drift). Though it is possible to distinguish public and private drift conceptually, drift is in practice a unified phenomenon: public and private drift go together. Drift is manifested not only in formal, legal developments, but also in the informal processes by which public law frameworks now influence private ordering, private rulemaking, and private relationships, as well as the way private authorities have been entrusted with the responsibility to implement those public law frameworks.

This paper’s perspective on the public-private debate is explanatory. It accepts that many people perceive or believe American law to be in some sense divided into public and private domains, without endorsing that perception or belief. It does so in order better to describe the coming of drift. Even if one were skeptical about the conceptual purity of public and private law, one might nevertheless believe that what is public and private is a question of more and less, of greater and lesser degrees, and that there can be periods of relative stability in these categories and relative disruption. The paper describes various contemporary examples of drift, explains drift’s comparative ascendancy today, and speculates about possible future developments for drift.

The upshot is that drift in public and private law may not be driven primarily by anything innate or conceptually necessary in the disciplines believed to constitute private or public law. Drift is instead a political byproduct, the issue of social and cultural anxieties concerning the absence of anything like a common political project. The paper deliberately selects examples of drift that exhibit what would be conventionally described as conservative and progressive valences (in the meteoric rise of public nuisance, in the strategy of statutes like Texas’ S.B. 8, in the mixed public-private response to COVID-19, in the controversies about social media speech control, and others) to illustrate the universality of the phenomenon. Drift is a response to a perceived political void or emptiness in which public-private partnerships of powerful actors emerge to fill the void, capture the institutions of power, and coerce people’s behavior into certain ideological grooves. Drift is, in sum, a reaction to social fragmentation that ironically and unhappily exacerbates the pathologies that provoke it in the first place.

Posted on by Marc O. DeGirolami · 3 Comments

Syllabus for my course on Freedom of Speech and Freedom of Inquiry

Still a work in progress, but this is the rough plan for a new seminar I’m teaching this spring at Princeton on the subject, as part of the Initiative on Freedom of Thought, Inquiry, and Expression of the James Madison Program in American Ideals and Institutions.

One focus for the course concerns the connection between free inquiry and knowledge–what knowledge’s value is, how it is gained, and how it is produced. More broadly, I’d like to explore in this course the goods that freedom of speech and inquiry are for, to borrow a line from John Garvey.

Suggestions most welcome. 

PRINCETON UNIVERSITY

Department of Politics

POL 494: Freedom of Speech and Freedom of Inquiry

Instructor. Marc O. DeGirolami

Description. American law vigorously protects free speech. Free speech lies at the core of our politics and culture. But many argue for greater government regulation of speech, particularly for “hate speech” and other speech deemed “offensive.” Social media and speech at universities present additional challenges, some of which have involved Princeton itself. And what about “cancel culture” and other social controls on speech? Are these healthy limits or stifling constraints? This course explores the historic and philosophical justifications for protecting speech, focusing on the freedom of inquiry—the freedom to ask questions in pursuit of knowledge and truth. It also introduces students to the constitutional law of free speech. It asks students to think about speech’s value in historical perspective and today.

The course is sponsored by the James Madison Program’s Initiative on Freedom of Thought, Inquiry, and Expression, and by a grant from the Stanton Foundation.

Freedom of Thought, Expression, and Discussion. As set forth in Rights, Rules, Responsibilities section 1.1.3, Princeton University strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this class and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds.

Readings. All readings are posted to the Canvas page with the following exceptions. Please purchase a copy of the following:

  • John Stuart Mill, On Liberty (Dover Thrift Edition 2002)
  • Keith Whittington, Speak Freely: Why Universities Must Defend Free Speech (2018)

Grading. The grading breakdown for the course is as follows: mid-term paper 30%; final paper 50%; class participation 20%.

Late Penalty. Due dates are strictly enforced. Papers received with a time stamp after 5 pm but before midnight on the date on which they are due will be penalized a half letter grade. Papers will be penalized another half letter grade if they are received by 5 pm the subsequent day and another half letter grade the day after that.

SCHEDULE OF COURSE MEETINGS AND ASSIGNMENTS

Assignments are tentative and subject to revision as the course proceeds

Week 1, Thursday, February 2: Introduction to the Course, the Constitution of the United States, and the First Amendment Freedoms

Syllabus

U.S. Constitution (all)

Geoffrey Stone, “The Story of the Sedition Act of 1798: ‘The Reign of Witches,’” in First Amendment Stories (Garnett & Koppelman, eds. 2012)

Jud Campbell, “Natural Rights and the First Amendment,” Yale Law Journal (2017) (Introduction, Part II, Part III, Part IV)

THEORY

Week 2, Thursday, February 9: English Antecedents and American Foundations

Thomas Hobbes, Leviathan, Part II, Chapter XXIX (“Of those things that weaken or tend to the dissolution of a Commonwealth”) (1651)

John Locke, Letter Concerning Toleration (1689)

James Madison,

Federalist 10 (1787)

Federalist 51 (1788)

Report on the Virginia Resolutions (1799-1800)

Judith N. Shklar, “The Liberalism of Fear,” in Judith Shklar, Political Thought and Political Thinkers (Hoffman, ed. 1998)

Week 3, Thursday, February 16: Classic Justifications and Critiques

Abrams v. United States (1919) (majority and dissent of Holmes, J.)

John Stuart Mill, On Liberty, Chapters 1, 2, 3 (1859)

James Fitzjames Stephen, Liberty, Equality, Fraternity (1873) (selection)

Herbert Marcuse, “Repressive Tolerance” (1965)

Robert P. George, Making Men Moral: Civil Liberties and Public Morality (1993) (Chapters 1 and 7)

Week 4, Thursday, February 23: Free Speech and Free Inquiry at the University, Part I—The Purpose of the University

Plato, Apology

Aristotle, Politics, Book 7.13; Book 8

Zena Hitz, Lost in Thought: The Hidden Pleasures of the Intellectual Life (2020) (Introduction, Chapter 3)

Alasdair MacIntyre, “The Very Idea of a University: Aristotle, Newman, and Us,” British Journal of Educational Studies (2009)

Anthony Abraham Jack, The Privileged Elite: How Elite Colleges are Failing Underprivileged Students (2019) (Introduction)

Jonathan Haidt, “When Truth and Social Justice Collide, Choose Truth,” Chronicle of Higher Education (2022).

Week 5, Thursday, March 2: Free Speech and Free Inquiry at the University, Part II—Free Speech, Academic Freedom, and Cancel Culture

Keith Whittington, Speak Freely: Why Universities Must Defend Free Speech (2018) (selection)

Patrick Deneen, “Against Academic Freedom,” Irish Rover (2022)

Naomi Oreskes & Charlie Tyson, “Is Academe Awash in Liberal Bias?” Chronicle of Higher Education (2020) & Phillip W. Magness, “Tenured Radicals Are Real,” Chronicle of Higher Education (2020)

Justin McBrayer, “Diversity Statements are the New Faith Statements,” Inside Higher Education (2022)

Brian Soucek, “How to Protect Diversity Statements from Legal Peril,” Chronicle of Higher Education (2022)

Brian Leiter, “Diversity Statements are Still in Legal Peril,” Chronicle of Higher Education (2022)

Clifford Ando, “Princeton Betrays Its Principles,” Chronicle of Higher Education (2022)

Sarah Brown, “‘Public-University Curricula are Government Speech,’ Florida Says,” Chronicle of Higher Education (2022)

Katha Pollitt, “Cancel Culture Exists,” The Nation (2022)

Week 6, Thursday, March 9: Free Speech Skepticism

Gerhart Niemeyer, “A Reappraisal of the Doctrine of Free Speech,” Thought: Fordham University Quarterly (1950)

Jamal Greene, How Rights Went Wrong (2021) (selection)

Anthony Leaker, “Against ‘Free Speech,’” Cato Unbound (2019)

Note, “Blasphemy and the Original Meaning of the First Amendment,” Harvard Law Review (2021)

Marc O. DeGirolami, “The Sickness Unto Death of the First Amendment,” Harvard Journal of Law and Public Policy (2019) (selection)

Richard George Wright, “Free Speech as a Cultural Holdover,” Pace Law Review (2019)

MIDTERM PAPERS DUE FRIDAY, MARCH 10, BY 5:00 PM

SPRING BREAK

LAW

Week 7, Thursday, March 23: The Content-Based//Content-Neutral Framework, Expressive Conduct

United States v. O’Brien (1968)

Texas v. Johnson (1989)

Frisby v. Schultz (1988)

Renton v. Playtime Theaters (1986)

Week 8, Thursday, March 30: Categorical Exceptions to the Freedom of Speech

Chaplinsky v. New Hampshire (1942) (fighting words)

Brandenburg v. Ohio (1969) (incitement to violence)

Miller v. California (1973) (obscenity)

United States v. Alvarez (2012) (false statements of fact)

Week 9, Thursday, April 6: Offensive Speech, Hate Speech

Cohen v. California (1971)

Snyder v. Phelps (2011)

Matal v. Tam (2017)

Richard Delgado, “Words That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling,” Harvard Civil Rights Civil Liberties Law Review (1982)

Jeremy Waldron, The Harm in Hate Speech (2012) (selection)

Steven D. Smith, “Liberalism and Hate Speech,” Law and Religion Forum (2022)

Week 10, Thursday, April 13: Compelled Speech and Association

West Virginia State Board of Education v. Barnette (1943)

Wooley v. Maynard (1977)

Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018)

303 Creative LLC v. Elenis (2022) [listen to LegalSpirits Podcast on the case]

Week 11, Thursday, April 20: Government as Subsidizer and Employee Speech

Rust v. Sullivan (1991)

Christian Legal Society v. Martinez (2010)

Pickering v. Board of Education (1968)

Garcetti v. Ceballos (2006)

Week 12, Thursday, April 27: Issues in Social Media Speech and Regulation

Packingham v. North Carolina (2017)

Biden v. Knight First Amendment Institute (2021) (Thomas, J., concurring)

Lee C. Bollinger & Geoffrey R. Stone, eds., Social Media, Freedom of Speech, and the Future of our Democracy (2022) (selection)

Adam J. White, “Google.gov,” The New Atlantis (2018)

Kate Klonick, “The Terrifying Power of Internet Censors,” N.Y. Times (2017)

Ken Klippenstein, Lee Fang, “Truth Cops: Leaked Documents Demonstrate DHS’s Plans to Police Disinformation,” The Intercept (2022)

Thomas Fazi, “The Human Cost of Twitter’s Censorship,” Compact (2022)

FINAL PAPERS DUE FRIDAY, MAY 18, BY 5:00 PM

Posted on by Mark Movsesian

Movsesian on 303 Creative

At First Things today, I report on last week’s oral argument in 303 Creative, the latest wedding vendor case to reach the Supreme Court–this time involving a web designer who does not wish to provide services for same-sex weddings. 303 Creative, like most such cases, presents a conflict between free speech, including religiously-motivated speech, and equality in the marketplace. Based on last week’s argument, I argue, it looks like speech will prevail. Here’s an excerpt:

Resolving [the web designer’s] claim requires the Court to answer a basic, conceptual question under the Court’s precedents: As applied to Smith’s web design business, does CADA regulate speech or conduct? If the former, CADA would have to satisfy a test known as “strict scrutiny.” Colorado would have to show that prosecuting Smith was “necessary” to promote a “compelling” state interest. By contrast, if the law regulates conduct and only incidentally affects speech, Colorado would have to satisfy a more lenient test known as the O’Brien standard. Colorado would have to show only that CADA “furthered” an “important” or “substantial” state interest unrelated to the suppression of speech.

At last week’s argument, Colorado’s lawyer argued that CADA is directed principally at conduct. Were Colorado to prosecute Smith, he explained, it would be because Smith had discriminated against customers based on sexual orientation, not because she expressed an opinion on same-sex marriage. Smith could not be required to praise same-sex marriage expressly—but she would have to design websites for all comers. Appearing on behalf of the Biden Administration as amicus curiae, Deputy Solicitor General Brian Fletcher agreed. Declining categorically to design websites for same-sex weddings, he told the justices, would be “a form of status-based discrimination properly within the scope of public accommodations laws.”

This argument appeared to persuade progressives like Justice Sonia Sotomayor—but not the Court’s conservatives. For example, Justice Neil Gorsuch stressed that Smith had said repeatedly that she would “serve everyone,” straight, gay, or transgender, and would decline to design websites for same-sex weddings no matter who requested them. She objected to expressing a message with which she disagreed, not to serving customers of different sexual identities. When it came to designing wedding websites, Gorsuch emphasized, “the question” for Smith wasn’t “who,” but “what.”

You can read the whole thing here.

Posted on by Mark Movsesian

Why American Rationalism Failed

At First Things today, I review The Church of Saint Thomas Paine, a new history of 19th-century American rationalists. The book offers interesting and sometimes amusing portraits of these men and women, one of whom turns out to be my great-granduncle, M.M. Mangasarian (left), who founded his own rationalist congregation in Chicago in 1900. Mangasarian had initial (and unusual) success, but his “Independent Religious Society” ultimately failed, for the same reason all the rationalist societies failed: an inability to resolve basic incoherencies in the movement. Plus, the religion of science is a hard sell for Americans, who tend to believe in transcendent reality, even if they are skeptical of organized religion.

Here’s an excerpt:

Inspired by the French positivist Auguste Comte and the American transcendentalist Ralph Waldo Emerson, and taking the eighteenth-century freethinker Thomas Paine as a kind of patron saint, a small group of Americans attempted to found a rationalist “religion” with science as its highest authority. They started congregations in cities like New York, Chicago, and Portland; they held meetings on Sunday mornings to compete with Christian rivals; they even wrote catechisms and ran Sunday Schools to indoctrinate new members. All confidently believed they were the vanguard of a new, secular religion that would displace Christianity and promote human progress.

But the new religion failed. The congregations attracted few followers; typically, as one British humorist wrote, these were churches “of three persons, but no God.” Most fizzled out or merged with larger groups like the Unitarians. Other than cranks who seemed as credulous as the believers they mocked, Americans had little interest in Comte’s wedding and funeral ceremonies or the relics of secular saints. (In 1905, after a long quest, a small group of freethinkers placed something they claimed to be a piece of Thomas Paine’s brain, sold to them for five pounds by an obscure London bookseller, in a monument in New Rochelle.)

Schmidt shows that rationalist congregations failed because organizers never resolved basic inconsistencies. Rationalism valued science and rejected metaphysics. Why, then, collect relics and meet weekly for thinly disguised worship services? Moreover, rationalism “made intellectual independence and the displacement of all religious authorities foundational to its platform.” Paine himself had railed against organized religion, famously declaring, “my own mind is my own church.” Similarly, although Emerson had prophesied a new religion with “science” for its “symbol,” he insisted on individual spiritual autonomy: “I go for Churches of one.” What, then, was the point of joining a new religion, even a rationalist one? People who share only a commitment to radical individualism and an opposition to religious orthodoxy are unlikely to form an enduring community.

You can read the whole review here.

Posted on by Marc O. DeGirolami

“Mysterizing Religion”

A draft of a short paper for a recent symposium I participated in at Notre Dame Law School. Here’s the abstract:

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. Religious mysteries tend to designate the unfathomable matters of religion, those that the merely human mind cannot grasp.

In this short paper, I suggest that “mysterizing” religion may change the stakes in some of the most controversial conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above—to press the view that a certain subject or phenomenon is not merely unknown, but unknowable by human beings. That is what I propose to do for religion in American law, and what may well alter the landscape of the conflicts between advocates of religious liberty and the forces opposing it. Fortunately, I have had some help. The mysterization of religion seems already to be well under way in American constitutional law. It is a central feature of the Supreme Court’s current conception of religion.

The specific context I consider concerns the question whether the government may make public funds available to private religious schools—either directly or through mechanisms of independent, private choice—on condition that the schools accept and implement nondiscrimination rules regarding the sexual identity or conduct of their students and faculty. The mysterization of religion probably alters the legal landscape by rendering the claim that conditions concerning the admission or hiring of LGBTQ persons interfere with religious free exercise stronger than it otherwise would be. And the argument for mysterization itself derives strength from the Supreme Court’s own conception of religion as ineffable, unintelligible, and unevaluable, as well as from the Court’s recent ministerial exception cases.

I conclude by briefly reflecting on what the mysterization of religion may mean more generally for law and religion. It is not all good news for religion. In fact, upon closer inspection, it turns out that mystery in traditional religions, conceptualized as a partial, incomplete, or imperfect apprehension of the transcendent, is quite different than mystery in the contemporary legal understanding of religion as psychological, interior, personal unfathomability. Almost its opposite.

Posted on by Marc O. DeGirolami

Panel on Traditionalism and Originalism at Georgetown Today

I’m down at Georgetown Law School today for a lunchtime presentation on “Dobbs and Bruen: History, Tradition, and Originalism,” hosted by the Georgetown Center for the Constitution. I’m looking forward to catching up with my old professors, Larry Solum and Randy Barnett, and to meeting and chatting with students about traditionalism and originalism at the Court.