My Take on Gorsuch: A Solid Conservative

At the First Things site today, I reflect on this week’s nomination of Judge Neil Gorsuch to serve on the Supreme Court. In my opinion, he’s likely to be a solid conservative–the sort of judge that any Republican administration in the last generation could have nominated. Here’s an excerpt:

He holds to originalism in constitutional interpretation and textualism in statutory interpretation—two positions that have been the foundation for judicial conservatism since the 1980s. His record in religion cases is reassuring. On the free exercise side, he has shown sensitivity to the right of believers to claim exemptions from laws that substantially burden their religious exercise. And he has done so not only in the famous Hobby Lobby case, in which the claimants were conservative Christians, but in a case involving a Native American prisoner. In fact, his opinion in the latter case, Youngbear v. Lambert, is a sophisticated, engaging essay on the law of religious exemptions generally. Gorsuch is a clear and accessible writer—something one cannot say for many judges.

His opinions on the Establishment Clause side, less well known, are also encouraging. Judge Gorsuch has signaled his opposition to the thirty-year-old “endorsement test,” which forbids state-sponsored displays that a reasonable observer would understand as an endorsement of religion. The test is famously malleable, and Judge Gorsuch has criticized the way his own circuit, in particular, has misinterpreted it to forbid some traditional public displays—including, notably, a Ten Commandments monument. His apparent dissatisfaction with the endorsement test bodes well for restoring a more sane Establishment Clause jurisprudence that honors American traditions.

You can read the whole post here.

 

It’s Not a Muslim Ban

This morning at the Law and Liberty site, I have a post on the controversy surrounding President Trump’s executive order on immigration. I criticize the way the order was prepared and released, but also the unhinged reaction to it.

Here’s an excerpt:

And yet, the unhinged reaction to the order also doesn’t help. Don’t believe the hashtags: the order does not ban Muslim immigration to the US or impose a religious test for admission. The language is quite technical, and there are complications I lack space to address here. But, basically, the order does two things. First, it places a temporary ban on the admission of refugees from anywhere in the world, for 120 days, while officials review our current procedures to determine whether further security measures are necessary. After this 120-day period, the government will resume admitting refugees, up to 50,000 this year, under whatever new procedures officials devise.

The government will also be authorized, after 120 days, to give priority to refugees who are religious minorities and subject to persecution in their home countries. In an interview, President Trump indicated that he had Christians in mind. But by its terms the order extends to other religious minorities as well. In other words, it could cover Yazidi refugees from Iraq and Ahmadi Muslim refugees from Pakistan. It is not a unique preference for Christians—an issue I will address more in a moment.

You can read the whole post here.

 

On the Virginia Statute for Religious Freedom

At the Library of Law and Liberty this morning, I have a post on the Virginia Statute of Religious Freedom of 1786, the anniversary of which America marked last week. Among other things, I describe how Jefferson deftly combines Enlightenment and Evangelical Christian arguments to support religious freedom. Here’s a sample:

It’s fascinating, therefore, to go back and read the statute in its entirety. Three things stand out. First is the skillful way Jefferson combines two dramatically different strands of thought to justify religious freedom—Enlightenment Liberalism and Evangelical Christianity. (As a good lawyer, Jefferson knew how to make an argument in the alternative). “Truth is great and will prevail if left to herself,” the preamble declares; “she is the proper and sufficient antagonist to error.” Through free debate, people could reason their way to truth, in religion as in other matters. No justification existed, therefore, for prohibiting people from expressing their religious opinions and trying to persuade others.

This Enlightenment defense of free inquiry was not likely to convince everyone, though, so Jefferson added an argument from Evangelical Christianity as well. Religious freedom was the plan of “the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.” Establishments had resulted in “false religions over the greatest part of the world,” including, presumably, Catholicism and Islam. The point was clear: a good Evangelical Christian should support religious freedom, for Christianity’s sake. This combination of Evangelical and Enlightenment reasoning is a major theme in American church-state law, and it’s interesting to see how far back it goes.

That Jefferson, he was one shrewd lawyer. You can read the whole post here.

Luther’s Endurance

This morning at the Library of Law and Liberty site, I review the Morgan Library’s recent exhibit on the 500th anniversary of the 95 Theses, Martin Luther’s questions about Church teaching that sparked the Protestant Reformation. Although the exhibition doesn’t take sides, expressly, it’s pretty clear that Luther is the hero of their story — and I explain why:

Why does the Morgan favor Luther in his debate with the Church? It’s not because the management is Lutheran. It’s because, whatever the debate within Christianity on Faith versus Works—and both Lutheran and Catholic theology show more nuance than people typically understand—in the secular world, Luther has come to stand for the overthrow of traditional authority in favor of individual subjectivity. We typically mean something very different by “conscience” than he did in that statement at Worms, but his emphasis on individual conviction rather than received wisdom anticipates the preeminence of personal authenticity as a social and political value. That’s why Luther continues to appeal to our wider culture today.

You can read the whole post here.

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.

How the US Hurt Mideast Christians

This month, I’m guest blogging at the Library of Law and Liberty. I’ve begun with a series of posts on the persecution of Christians in the Mideast. This persecution has many causes, including social attitudes formed by centuries of existence as dhimmis. In today’s post, though, I argue that the West bears some responsibility as well, including the US. Here’s a sample:

Finally, there are the recent actions of the United States. The Bush Administration’s invasion of Iraq in 2003, coupled with the precipitous withdrawal of American troops under the Obama Administration, has been a disaster for local Christians. The invasion exposed Christians to reprisals from Islamists; the withdrawal of troops allowed the reprisals to take place on a wide scale. In Syria, the Obama Administration’s signal that it would support the overthrow of Assad—recall the red line in the summer of 2013—encouraged a rebellion; its failure to back up its words with action has led to slaughter. This is not to say the US should have intervened militarily in Syria. But it shouldn’t have encouraged a rebellion it was not prepared to back, either.

You can read the whole post here.

Four Pieces on Culture Warring–Inevitable, Interminable, Permanent

For one reason or another, a number of people in the blogosphere have been writing culture war posts in the last few days. Perhaps it’s the end of the year, or the looming political changes, or exam avoidance, or just the holiday cheer. For those who are interested, have a look at Mark Tushnet’s recent post, Paul Horwitz’s response, and this rather grim comment by R.J. Snell–all of them culture war related.

But the piece I really want to highlight is alluded to in the Snell post–Philip Rieff’s “The Newer Noises of War in the Second Culture Camp: Notes on Professor Burt’s Legal Fictions,” published in 1991 and in response to Robert Burt’s then-recent book, “Two Jewish Justices: Outcasts in the Promised Land.” I cannot do justice to the entire piece, but here is a fragment that is, in its way, responsive to each of the three posts above:

Let there be fight? And there was. And there is. James Joyce’s pun, on the words of Jewish second world creation, Genesis 1:3, is more than mildly amusing; it gives readers the most exact and concise account I know of the sociological form of culture. Culture is the form of fighting before the firing actually begins. Every culture declares peace on its own inevitably political terms. Unless a culture is defeated politically, as the Jewish was from the Roman conquest to the founding of Israel, it will assert itself politically. A living culture, even one that imitates life by politicizing its cultural impoverishment, works for itself. That cultural work is the matter and manner of disarming competing cultures, inside and outside its previously bounded self. In its disarming manner, a culture makes the ultimate political means of enforcement, armed force, unnecessary….

12) Kulturkampf. The German compound word for the disarming force/form of culture has an awkward English equivalent: culture/struggle. As I remarked in the first note, the punning polemical genius of Joyce brought him closer than any sociologist I know to both the formal fighting sense of culture and its superordinate creative sense. It is in that both/and that the historical task of culture is always and everywhere the same: the creation of a world in which its inhabitants may find themselves at home and yet accommodate the stranger without yielding their habitus to him. Here and now, pluralism has its price: a united front of second against third world assaults [for Rieff’s discussion of first, second, and third worlds, see earlier in the piece], which are often mounted in the name of pluralism.

13) Origins of kulturkampf. Law is the ultimate weapon, before any turn to harder ware, in a kulturkampf. That word first appeared in common German use in the early 1870’s during the struggle of the National Liberal political party to disarm by law the moral/educational authority, and political pulpitry, of a triumphalist Roman Catholic hierarchy, revitalized as it then was by its dogma of papal infallibility in matters of faith and morals. The aim of the National Liberals was to shift the German Catholic imagination away from the church to the state. The Pope responded to newly restrictive laws by forbidding clerical conformity to them. In turn, the state dismissed clerical resisters from their duties and, moreover, suspended their state salaries. Elites of the kulturstaat, both Catholic and Protestant, then learned a fatally rational and enduring lesson: the high price of being other than indifferent to the temptation of opposing the machtstaat.

France: Guerres de Noel

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A Municipal  Christmas Creche in Nantes (Guardian)

 

At the First Things site, I have an essay (“Crèche Clash“) on the continuing Christmas Wars in France. The Conseil d’Etat, France’s highest administrative court, recently ruled on the legality of the Nativity scenes that many French municipalities display every December. Although it didn’t cite any American cases, the French court relied on the same test American courts have developed to determine the constitutionality of Christmas displays in this country, the so-called endorsement test:

The Conseil begins by stating that laïcité forbids “any display by public authorities of signs and symbols showing a public recognition or a preference for a given religion.” A Christmas crèche poses a difficult case. Although a crèche can convey a religious message, it also has a non-religious meaning as a familiar seasonal decoration. One message is forbidden for the state, the other acceptable. Display of a crèche by a public authority is therefore legal, the Conseil declares, “only” where the crèche “has a cultural, artistic or festive purpose, but not if it expresses” recognition of or preference for a religion. To determine the meaning of a display, one must consider the particular circumstances, “including the existence or the absence of local traditions and the location of the display.”

Readers familiar with the American case law will recognize this as a version of the “endorsement test” our own courts use to evaluate the constitutionality of public nativity scenes. Under the test, first proposed by Supreme Court Justice Sandra O’Connor in a 1984 case from Pawtucket, Rhode Island, a display violates the Establishment Clause if it amounts to an official endorsement of religion, that is, if it suggests that the government approves a particular religious message (or disapproves such a message, though that issue does not regularly arise). Official endorsements make non-adherents feel like second-class citizens, the reasoning goes—like less than full participants in the political community. As a consequence, such endorsements violate the Constitution.

In the essay, I argue that the French version of the endorsement test turns out to be just as confusing as the American, with many of the same deficiencies–including its tendency to outlaw traditional features of public life. You can read the essay here.

On Bach’s B minor Mass

Here’s a fun article on J.S. Bach’s magnificent Mass in B minor, one of the magisterial and final pinnacles of his oeuvre, and yet in some ways puzzling. What, after all, was a faithful Lutheran doing setting an entire Roman Catholic Mass–a Missa Tota?

And for performances, stay away from the trendy and the faux HIP (Historically Informed Performances). Someday I will write a rancorous essay entitled, “Historically Informed Performances: The Living (and oh so HIP) Originalism of Classical Music.”

Instead savor the magnificently moody and measured performances of Furtwängler and Scherchen. Or, if you can’t get ahold of those, this version conducted by Herbert von Karajan will do.

The Revival of Nationalism in 2016

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At the Library of Law and Liberty site this morning, I have a post on the elections of 2016. Across the West this year, the unthinkable has occurred again and again: Brexit; the election of Donald Trump; the popularity of the National Front in France and Euroskeptic parties like Lega Nord and the Five Star Movement in Italy. What explains these developments?

Although traditional conservatism, including religious conservatism, has had a role, I argue that the most important factor has been the revival of nationalism across the West:

In short, although traditional conservatism has been on the winning side in recent political contests, it has been a junior partner in a larger project: the revival of nationalism. Nationalism is a complicated phenomenon that takes different forms. A good working definition is the following: a political program that unites a people with a common ancestry or culture together with a sovereign state. Nationalism rejects attempts to subordinate the state to outside governance. Often, it seeks to protect local traditions from being diluted by an aggressive global culture. In its present iteration, it sets the nation-state against supranational, liberal regimes like the EU or NAFTA, and local customs and traditions, including religious traditions, against alien, outside trends….

One can easily perceive nationalism’s role in the politics of 2016. Repeatedly, the side advocating a recovery of sovereignty from supranational bodies and a limit on immigration prevailed. In the Brexit campaign, the “Leave” supporters argued that Britain must take back control from EU bureaucrats and assert authority over its borders. Here, Trump famously called for withdrawal from the proposed Trans-Pacific Partnership treaty and for renegotiation of other free-trade agreements, including NAFTA; for a wall to keep out Mexican immigrants; and for a temporary ban on Muslims entering the country.

In France, the National Front’s Marine Le Pen has proudly declared that “the time of the nation state is back” and calls for restrictions on immigration and an end to multiculturalism. She maintains that the EU should be reconceived as a loose collection of sovereign states and that France should withdraw from the common currency. The ideology of Italy’s Euroskeptics is more fluid; nationalism is weaker in Italy, too. But important elements within Lega Nord and the Five Star Movement express skepticism about the EU and seek to withdraw from the euro, and also disfavor allowing large numbers of immigrants into the country.

The rise of nationalism upsets the conventional wisdom, which for some time has been predicting its demise. But, in times of crisis, people return to the nation state. I explain more here.

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