Muteness of sentiment and unthinking acceptance of a model visible in the conduct of others, the recognition of convenience and the acceptance of results at an expected level of satisfactoriness, are sometimes infused with a level of piety toward the past. The pastness of a model of action or belief may be an object of reverence. Not givenness, and not convenience, but its sheer pastness may commend the performance of an action or the acceptance of a belief. Deference divested of reverence is contained in the principle of the jurisprudence of the common law which commands respect for precedent. The fact of pastness is acknowledged as normative. A decision under the common law ordinarily entails no attachment to a particular epoch or a particular deed or a particular generation in the past, it is the pastness of the precedent as such. Its normative necessity is self-evident: that is the way it was, that is the way it ought to be. There is no sentiment of reverence formed about the way it was. Attachment to a particular past epoch infused with charismatic quality by sacred revelation or a sacred person and sacred events which is characteristic of the Christian attitude toward the age of the Gospels is a different sort of thing in sentiment and in the scope of significance from the attitude toward the judicial precedent. Both attachments have in common, however, the normativeness of the past pattern.
Interesting observations, which make me wonder precisely in what position constitutional stare decisis might be situated in terms of sentiments of “attachment to a particular epoch or a particular deed or a particular generation in the past.”
That’s the title of a short piece I have over at Law and Liberty, concerning the transformation of the concept of religious freedom from a hybrid divine/human right to an entirely human right. From the beginning (and do see the Mansfield essay, which is about a good deal more than my own):
The eminent political theorist Harvey Mansfield once wrote that the “religious question” is the crucial one for the modern age, because it concerns the ultimate repository of authority and control. Is it human or is it divine?
“All pre-modern regimes,” said Mansfield, “are more or less based on divine right, on appeal to a principle that says men do not control themselves, that they are controlled by a higher power.”
The modern project, by contrast, is centrally concerned with liberation from that higher power:
“For if men cannot act effectively on their own, they will have to return to divine right, notwithstanding the objections that philosophers might propose. Liberation leads to reform. Liberation is not merely skeptical or negative; it is positive and progressive.”
One of the ways that modernity has answered this challenge is by appropriating “religion” and transforming it from a duty that one owes a creator to a duty that one owes to oneself. In law, one sees this transformation clearly in the standard that is conventionally applied by American courts to requests for religious exemptions from general laws, in which sincerity, individual commitment, or personal conviction are alone sufficient to bring a claim (though they are not sufficient to prevail).
That way of perceiving and understanding religion certainly mitigates certain dangers. It locates authority when it comes to religion solely in the individual, thereby removing all authority from the state. The state is disabled from judging in matters of religion both for epistemic and non-establishment reasons.
Furthermore, religion, as a legal category, becomes accessible to more and more Americans, irrespective of what they may believe. That is precisely what happened in the mid-20th century, as the “duty to the Creator” conception of religion was relaxed in favor of a conception locating all authority over religious questions in the individual conscience.
But this revision may also lead to problems, as religion steadily becomes dissociated from any power external to the individual believer. Law, of course, is responsive to and reflective of more general cultural movements, understandings, and programs, and a short post of this kind is no place to document those changes. But the transformation of religion from a divine phenomenon to a human one was brought home to me in reading the “Religion” section of the New York Times Book Review a few weeks ago. Four books about “religion” were reviewed—all favorably. Every one of them reflected this transformation.
In anticipation of the new academic year, I have a short piece over at Liberty Law on a piece by Justice Scalia that (I think) has received almost no commentary, with the exception of a very good essay by Adam White, on “Teaching About the Law.” Here’s the beginning:
There is not very much written by Justice Antonin Scalia that has gone largely unnoticed. But thanks to Adam White (and this fine article of his), I recently read this obscure 1987 essay by the late Justice: “Teaching About the Law” in the Christian Legal Society Quarterly. As we are just over a month away from the beginning of the law school year, it is a propitious moment to share its ideas.The principal question Scalia addresses is this: what ought a law professor who was so inclined teach law students about the Christian attitude toward the secular law? But the answers Scalia offers are of interest because of what they say to, and how they challenge, both the prevailing progressive and libertarian pedagogical frameworks that respectively structure much of law teaching.
Scalia’s first answer is that Christians have a moral obligation to obey the secular law. Drawing from Paul’s Letter to the Romans, Scalia writes that “the first and most important Christian truth to be taught about the law” is that “those knaves and fools whom we voted against, and who succeeded in hoodwinking a majority of the electorate, will enact and promulgate laws and directives which, unless they contravene moral precepts, divine law enjoins us to obey.”
One feature of this answer fairly aligns with the libertarian view of law and politics: for the Christian, good government may be limited government, imperfect government, and perpetually monitored and checked government. But another feature of it is in some tension with the libertarian position: for good government is, in fact, good; so good that it has a moral claim to our obedience.
Recently, I visited the New York State Courthouse here in Jamaica, Queens. For readers who don’t know, Queens is one of New York City’s outer boroughs. It is the most ethnically diverse county in the United States, perhaps the most ethnically diverse place in the entire world. About half its population of 2.3 million is foreign born. More than half speak a language other than English at home. About 40% of its residents are white; Asians and African-Americans each make up about a fifth of the population; Latinos a bit more. Statistics on religious affiliation are harder to come by, but apparently about half of the borough’s residents are Christians; of them, Catholics make up the largest percentage, about one-third of the total population. As to the other 50%, Queens has significant numbers of Jews, Muslims, Hindus, Sikhs, Buddhists, and people without formal religious affiliation—the Nones. In terms of religious and cultural variety, Queens has it all.
Given the ethnic and religious diversity of Queens, a work of art I saw in the Queens courthouse surprised me. Decorating the building’s central, ceremonial staircase are a pair of two large WPA-style murals, executed when the courthouse was built during the Great Depression. They make up a unified work. The one on the left, titled “Mosaic Law” (above) shows a crowd of Hebrews surrounding Moses as he descends from Mt. Sinai with the tablets containing the Ten Commandments, written in Hebrew script. The one on the right, titled “Constitutional Law” (below) shows a crowd of historical figures—Washington, the Framers, and Chief Justices from John Jay to Charles Evans Hughes—gathered around a stone plaque with the words of the Preamble: “We the People.”
In one sense, of course, the murals should not have surprised me. Displaying the Ten Commandments in courthouses is an American tradition. It has become an extremely controversial one, however. Litigants have brought numerous constitutional challenges in the last few decades. Courts have reached different conclusions, based largely on the facts of specific cases. About 10 years ago, the US Supreme Court ruled that the display of the Ten Commandments in one Kentucky courthouse violated the Establishment Clause under the so-called “endorsement test.” A reasonable observer, the Court held, would perceive the display as an impermissible, official endorsement of religion. Such an endorsement would send a message of exclusion to non-adherents and make them feel like outsiders in their own community—like disfavored, second-class citizens.
I stood on the staircase for a while and watched people go up and down. Aside from me, no one seemed to notice the murals at all. And I wondered, how could it be, in a place as religiously diverse as Queens, that no one had objected? How could it be that no one had claimed that the murals made him feel like an outsider, a second-class citizen? With thousands of people from different religious backgrounds passing by these murals every day, surely someone would have taken offense and brought a lawsuit. Were people too polite or intimidated to complain? That hardly seems possible, not in Queens. And if someone did bring a constitutional challenge, wouldn’t it have a good chance to succeed? What explains the quietude—the dog that doesn’t bark?
It seems to me there are two explanations. First, it’s quite possible that people in Queens, even the many people from religious traditions other than Christianity, Judaism, and Islam—all of which venerate the Ten Commandments—do not find the display at all offensive. They likely accept it as the tradition of the society in which they have chosen to live. Many of them have immigrated here at great personal cost and are not put off by American customs. Peter Berger and others have written about this phenomenon in the European context. Although European elites often argue that religious minorities find public Christian displays insulting, he explains, little evidence exists that the minorities themselves actually feel offended. Berger describes this misguided, or pretextual, solicitude for religious minorities as the “‘battering ram’ approach to policy making: secular elites make use of other faith communities in order to further their own—frequently secular—points of view.”
Of course, there are plenty of secular elites in New York City, and many of them are lawyers. So why has no one brought a lawsuit over the display at the Queens courthouse? Here we come to the second explanation: such a lawsuit would very likely fail. For one thing, notwithstanding its earlier decisions, it’s not clear that the Supreme Court would continue to apply the endorsement test to courthouse displays of the Ten Commandments. A couple of terms ago, in the Town of Greece case, the Court applied a different test to uphold the constitutionality of official, legislative prayer. Such prayer is constitutional, the Court said, because it is an important part of American tradition—and also because it does not coerce listeners to participate. Courthouse displays of the Ten Commandments are part of American tradition as well, and they also coerce no one. If the Town of Greece test applies, Ten Commandments displays would be constitutional as well.
The Court is notoriously unpredictable in Establishment Clause cases, though, and it could well continue to apply the endorsement test to courthouse displays. Even so, it’s unlikely the Queens murals would be unconstitutional. True, an observer could perceive a religious message. Perhaps the implication is that our fundamental law is of a piece with its divine predecessor, and that we, like the ancient Hebrews, are united by our worship of God. But observers could draw a variety of other messages as well. One very plausible interpretation is this: our Constitution is part of the great tradition of Western law, in which the Ten Commandments play a vital role. Another would be, these are two parallel episodes of lawgiving: Just as the ancient Hebrews were a community bound by a received law, so are we Americans today—although our law comes, not from God, but from the people itself. Perhaps there is no special meaning at all. Perhaps the artist was simply trying to dignify the building in a way that people of the time would find familiar and appropriate.
In short, the mural is not clearly an endorsement of religion. Moreover, it has been there for about 70 years now. As Justice Breyer reasoned in one of the Ten Commandments cases, the fact that a display has gone unchallenged for decades suggests that people do not perceive it as an insult or a religious endorsement. To remove the mural now, on the ground that it impermissibly endorses religion, would suggest that government has an affirmative hostility to faith—a suggestion bound to insult believers and cause even greater social tension than allowing the mural to remain. Although the Court might not allow the mural to be installed in a courthouse today, the fact that it is already in the Queens courthouse gives it a kind of grandfathered status.
So, it seems likely the mural will remain. If you’re in the neighborhood, go take a look. You might also visit the nearby Rufus King Museum, the home of one of the Framers of the Constitution—though not, as far as I can tell, one of the Framers depicted in the mural—and the last Federalist candidate for President of the United States. What he would have thought of the murals’ constitutionality, I’m pretty sure I know.
My friend, Tom Berg, has this response to my post about Free Exercise Clause atrophy. He and I don’t see things too differently, though he is as usual more optimistic than I am. I think he undersells what can be read from the Stormans cert. denial. And the denial of cert. in Ben-Levi v. Brown (again with a J. Alito dissent). And the denial of cert. in Big Sky Colony, where I was also pleased to join another excellent amicus brief spearheaded by Tom himself urging review of the Free Exercise Clause issues. The Court just doesn’t want any part of these issues right now.
But Tom’s post makes me think that perhaps atrophy may actually be the best option on offer. Tom writes that “moderate-ish” liberals might be able to combine with the likes of Justice Alito to hear a case involving “state/local government action against Muslims, or against some other group that everyone agrees is a religious minority.” That is because “liberal opinion” has accepted the various third-party-harms theories being floated about, and because of the expansion of the idea of harm “that modern welfare-state liberalism regards as ‘public.'”
I think I agree with most of Tom’s description here. Tom is probably right that, e.g., Christians with certain specific beliefs about sexuality are not and will never be, in the “liberal opinion” he refers to, the sort of viable “minorities” thought to deserve FEC protection. That “liberal opinion” is powerful now, growing, and likely to influence the ideological profile of the Supreme Court directly and indirectly for years to come. If that is true, then perhaps we should root for atrophy, if not death. Better the Smith rule, which at least has the advantage of being clear and reasonably predictable, than the rule of “liberal opinion” masquerading as constitutional law. Indeed, perhaps religious accommodation has always been infected by something of this quality. We accommodate when we don’t really care–for prison beards, oddballs, and tiny, exotic sects to which nobody really pays attention. When we do care, we find ways not to accommodate (harm! third parties! dignity!). And as the ambit of the “public” increases, it becomes easier and easier to make claims about third party harms, particularly when those harms cut to the quick of “liberal opinion.”
A participant in our colloquium in law at St. John’s this spring, and a noted critic of religious accommodation (someone, as it happens, whose views in general don’t often match up with my own), suggested that if given a choice between non-discriminatory religious persecution and religious discrimination, he’d opt for religious persecution. I can’t say I agree. But this exchange makes me understand that view much more clearly.
Last week, the Eastern Orthodox Church, a communion of 14 autocephalous, national churches with roots in the Byzantine Christian tradition, concluded an historic synod on the island of Crete. Decades in the planning, the Pan-Orthodox Council, known officially as the Holy and Great Council, was meant to gather patriarchs from all 14 churches for deliberation on a series of issues in contemporary church life, including marriage, fasting, the Orthodox “Diaspora,” and relations with non-Orthodox Christians. At the last minute, four national churches, including the largest, the Russian Orthodox Church, declined to attend—a fact which, notwithstanding the protests of the Council’s supporters, seems as a practical matter to undercut the Council’s significance. Nonetheless, the Council is noteworthy for what it had to say on several topics, including the persecution of Mideast Christians and human rights in general. On the latter, the Council’s documents reveal, once again, important differences with the consensus understanding in the West.
First, though, a word about the churches that stayed away. From what I can tell, most (but not all) of these churches demurred in part because of concerns about what the Council might say about relations with other Christians. Ecumenism occasions much dispute within the Eastern Orthodox Church. Some, especially in monastic communities, believe that ecumenism implies that Orthodoxy has abandoned its claim to represent the one true church. Even referring to non-Orthodox Christians as “churches” can cause controversy.
In its declaration, “Relations of the Orthodox Church with the Rest of the Christian World,” the Council adopted (with all respect) a rather lawyerly solution. Yes, the document indicates, there is only one true church, and that is the Eastern Orthodox Church. But “the Orthodox Church accepts the historical name of other non-Orthodox Christian Churches and Confessions that are not in communion with her and believes that her relations with them should be based on the most speedy and objective clarification possible of the whole ecclesiological question.” In other words, the Council accepts that, historically, other Christian communions have been called “churches” (some of them, even, have been called “Orthodox Churches”!) and will work to clarify the situation. It’s an irenic statement. We’ll see how it is received, especially by those within the Orthodox fold who do not think clarification necessary.
Notwithstanding this hedging on the “ecclesiological question,” the Council did go out of its way to decry the persecution of Christians, Orthodox and non-Orthodox, in the Mideast today. In fact, it condemned the persecution of other religious minorities in the Mideast as well. The encyclical issued at the conclusion of the Council states, “The Orthodox Church is particularly concerned about the situation facing Christians, and other persecuted ethnic and religious minorities in the Middle East. In particular, she addresses an appeal to governments in that region to protect the Christian populations – Orthodox, Ancient Eastern and other Christians – who have survived in the cradle of Christianity. The indigenous Christian and other populations enjoy the inalienable right to remain in their countries as citizens with equal rights.” The Council refers to two Christian bishops, one Eastern and the other Oriental Orthodox, who were abducted two years in Syria and whose whereabouts are still unknown.
The Council’s official documents also speak about human rights generally, demonstrating, once again, how important the idiom is in contemporary debate. Today, everyone from secular lawyers to church patriarchs declares a commitment to the ideal of “human rights,” based in the concept of “human dignity.” It is the price of admission to polite discussion. But the Council’s documents reveal, once again, how differently people understand those terms. In today’s human rights discourse, people use the same words, but mean very different things.
The Council’s official documents are not always so easy to follow, but, taken together, they stand for these propositions: human dignity derives from the fact of divine creation; human freedom, correctly understood, is the freedom to progress toward spiritual perfection in Christ; and a secular understanding of human rights, which promotes Read more
The Supreme Court has had essentially nothing of substance to say about it over the last 23 years. The contraction of whatever rights are protected by it proceeds apace. In this article a couple of years ago, I noted that religious accommodation–
one of the most vital issues of religious free exercise that at one time implicated the Free Exercise Clause directly—has by now largely become entirely statutory. The Roberts Court has decided or issued substantive orders in 4 cases involving either RFRA or RLUIPA [excluding the nonprofit contraception mandate litigation]. In the same period it has decided only one case (perhaps) partially about the Free Exercise Clause, a case in any event that is arguably not about religious accommodation at all and that represents a carve-out from general free exercise principles. The single case that brought both statutory and free exercise claims was resolved solely on the basis of the statutory claim without any decision as to free exercise.
It is tempting to attribute the reason for this transition from the Free Exercise Clause to statute law entirely to the holding of Employment Division v. Smith, which ostensibly precluded judicial review as to laws that are neutral and of general application. To be sure, the rule announced in Smith has contracted the number of Free Exercise Clause challenges. And yet there are features of Smith—most notably the issue of the meaning of “general applicability” and the scope of what I have elsewhere described as the “individual-assessment exception” to Smith—that have suggested to several lower courts that accommodations are constitutionally required far more often than may appear under Smith. To date, however, the Supreme Court has declined to hear any cases raising a direct challenge to Smith.
The enfeeblement of the Free Exercise Clause continues. Last week, the Court denied cert. in Stormans v. Wiesman (with Justice Alito dissenting from the denial, in an opinion joined by the Chief Justice and Justice Thomas), a case about Washington State’s regulations requiring the stocking of drugs in pharmacies that provided exemptions for various secular reasons (business reasons, for example) but not for religious reasons. The case presented a golden opportunity for the Court to clarify what exactly “generally applicable” means under the test given to us a full generation ago by Employment Division v. Smith. Both Mark and I joined an excellent amicus brief urging the Court to do so.
No dice. Disappointing, but not surprising. Justice Kennedy, after all, was in the Smith majority, and while he authored the majority opinion in Lukumi-Babalu, his opinion offered a rather confused and confusing reading of general applicability (Justice Scalia’s concurrence was much better on this point). He joined four other Justices in denying cert.
But the larger point is that the Free Exercise Clause, at least as a possible source of accommodation, is increasingly a dead letter. Unless one has evidence of explicit discriminatory motivation in the making of exceptions (and it’s got to be really explicit), one should expect the Clause to offer nothing. The Court has little interest in saying anything else about the Free Exercise Clause, other than raising it as a kind of weak, pseudo-justification for carve-outs like the ministerial exception.
There are all sorts of political and cultural reasons for the atrophying of the Free Exercise Clause, of course. Some of those reasons are, I plan to argue in a new paper tentatively titled Religious Accommodation, Religious Tradition, and Political Polarization, pretty good reasons. But whatever the reasons–good or bad–they are not going away. In a generation or less, the Free Exercise Clause may well find itself in the company of the Privileges or Immunities Clause and the Third Amendment.
Santa Maria dei Miracoli, Piazza del Popolo, Rome (March 2016)
For readers who are interested, at the First Things site this morning, I have an essay that updates Henry Adams’s famous meditation on the conflict between technology and tradition, “The Dynamo and the Virgin.” My essay, “The Smartphone and the Virgin,” was inspired by an advertising billboard I saw hanging on the Church of Santa Maria dei Miracoli in Rome last spring (above), which made me reflect on the challenges the new information technology poses for human community and tradition, especially the Christian tradition.
Here’s a sample:
Like Adams’s dynamo, too, the Smartphone represents forces essentially destructive of tradition. In the civilization of the dynamo, Adams wrote, people found it impossible to honor or even to understand the claims of the past. In his essay, Adams recalled visiting the cathedral of Amiens with the American sculptor Augustus Saint-Gaudens. Adams noticed that Saint-Gaudens seemed unmoved by the spiritual power of the place—by the power of the Virgin, who had made the cathedral possible. Gibbon had felt the energy of Gothic cathedrals when he visited them in the eighteenth century, and had condemned it; Ruskin had praised it in the nineteenth. But by the twentieth, people no longer felt the energy at all. Saint-Gaudens admired the dignity of the architecture and the beauty of the sculptures, but perceived no meaning in them: “The art remained, but the energy was lost even upon the artist.”
The Smartphone likewise acts as a solvent on tradition, including religious tradition. Tradition depends on community—more precisely, on a community that sees itself as existing through time, an idea that is captured in the Christian tradition by the communion of saints. Such a community has claims on the individual by virtue of the fact that it has existed before him and will continue to exist after him. The individual is not completely submerged in the community; that would be a kind of totalitarianism. But he cannot create an entirely new world for himself, either. He draws his identity though his participation in a pre-existing, and in significant respects unchanging, order.
The Smartphone draws the user out from that sort of community. True, the Smartphone can promote a certain kind of community, a network of contacts who share interests, ideologies, even religious convictions. But it favors ephemeral interactions with strangers. It’s very easy to add people to your Contacts list—and just as easy to remove them and replace them with others. More important, the Smartphone encourages the user to spend his time in a virtual world he has curated all for himself. Not to mention the relentless, rapid updating of information to which the Smartphone has accustomed us. What claims can tradition have in a culture that values immediacy over everything else, and that has come to expect an update every five minutes?
Pope Francis and Patriarch Karekin II of the Armenian Church (Crux)
Last weekend, Pope Francis made an apostolic journey to Armenia, a small, landlocked country of three million in the South Caucasus, bordering Turkey, Iran, Azerbaijan, and Georgia. The official motto of his journey was “Visit to the First Christian Nation,” a reference to Armenia’s being the first state to adopt Christianity as its official religion, in 301 A.D., a matter of great national pride. Only a small percentage of Armenians are Roman Catholics; more than 90% belong to the Armenian Apostolic Church, a member of the Oriental Orthodox communion. Yet Francis received an enthusiastic reception from the Armenian Church hierarchy, the government, and the everyday people who crowded his public events. It’s worth focusing on the reasons for the warm welcome, and on the diplomatic and ecumenical significance of his journey.
Armenia is in a rough neighborhood. To the east, the country is locked in a frozen conflict with Azerbaijan, a majority-Muslim country, over Nagorno Karabakh, a region populated by Christian Armenians that seeks independence from Azerbaijan. A ceasefire has been in effect for about 20 years. In April, Azerbaijan renewed the conflict; Armenians successfully resisted the Azerbaijani attack, and the ceasefire was restored, but nerves remain on edge. To the west, Azerbaijan’s ally, Turkey, another Muslim-majority nation, has closed its border with Armenia, preventing needed economic development. To the north, relations with Georgia are peaceful but mixed; Georgia has its own breakaway regions and leans towards Azerbaijan in the Nagorno Karabakh conflict. The only strategic partner Armenia has in the region is its neighbor to the south, the Islamic Republic of Iran, which, somewhat surprisingly for outsiders, cooperates with Armenia on a number of issues. Armenia also has close relations with Russia. Indeed, the US typically thinks of Armenia as Russia’s proxy in the Caucasus. But the situation is more complicated than that. Russia plays both sides of the conflict in Nagorno Karabakh—it sells weapons to Armenia and Azerbaijan–and Armenians increasingly distrust it. As I say, a rough neighborhood.
The pope’s visit was a welcome sign that the outside world, and especially the West, has not forgotten Armenia. Even more, in Armenia, Francis once again went out of his way to use the word “genocide” to describe the massacre of as many as 1.5 million Armenians in Ottoman Turkey during World War I. Before the visit, the Vatican had suggested Francis Read more
