Symposium Papers on Law and Religion in an Increasingly Polarized America

The Lewis and Clark Law Review, with the guidance of Professor Jim Oleske, has put together a very nice symposium on Law and Religion in an Increasingly Polarized America. Very interesting papers by Kathleen Brady, Kent Greenawalt, Jessie Hill, Andy Koppelman, Ron Krotoszynski, Chip Lupu and Bob Tuttle, Jim Oleske, and Robin Wilson.

I’ve got a piece in there too, Religious Accommodation, Religious Tradition, and Political Polarization, which takes a somewhat critical look at the religious accommodation regime from, as it were, the other side.

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.

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.

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 High Church Temptation

Among the many interesting features of church-state political and social relations probed by Anthony Trollope in his novels are the various temptations to which adherents of the several Anglican groupings in mid-19th century England might become prone. The following passage from “Barchester Towers,” which tells of the early scholarly and ecclesiastical career of one Reverend Francis Arabin (now rector of a small parish called St. Ewald’s), describes very effectively one of the chief temptations for High Churchmen…eventual collapse into Roman Catholicism. Note, in particular, Trollope’s reference to Sir John Henry Newman (and his favorable comments about schismatics!).

And what of Low Church temptations? In what might those consist? That is for another post. Here is Trollope on the Rev. Arabin (from Chapter XX):

He had been a religious lad before he left school. That is, he had addicted himself to a party in religion, and having done so had received that benefit which most men do who become partisans in such a cause. We are much too apt to look at schism in our church as an unmitigated evil. Moderate schism, if there may be such a thing, at any rate calls attention to subject, draws in supporters who would otherwise have been inattentive to the matter, and teaches men to think upon religion. How great an amount of good of this description has followed that movement in the Church of England which commenced with the publication of Froude’s Remains!

As a young boy Arabin took up the cudgels on the side of the Tractarians, and at Oxford he sat for a while at the feet of the great Newman. To this cause he lent all his faculties. For it he concocted verses, for it he made speeches, for it he scintillated the brightest sparks of his quiet wit. For it he ate and drank and dressed, and had his being. In due process of time he took his degree, and wrote himself B.A., but he did not do so with any remarkable amount of academical éclat. He had occupied himself too much with high church matters, and the polemics, politics, and outward demonstrations usually concurrent with high churchmanship, to devote himself with sufficient vigour to the acquisition of a double first. He was not a double first, nor even a first class man; but he revenged himself on the university by putting firsts and double firsts out of fashion for the year, and laughing down a species of pedantry which at the age of twenty-three leaves no room in a man’s mind for graver subjects than conic sections and Greek accents.

Greek accents, however, and conic sections were esteemed necessaries at Balliol, and there was no admittance there for Mr. Arabin within the lists of its fellows. Lazarus, however, the richest and most comfortable abode of Oxford dons, opened its bosom to the young champion of a church militant. Mr. Arabin was ordained, and became a fellow soon after taking his degree, and shortly after that was chosen professor of poetry.

And now came the moment of his great danger. After many mental struggles, and an agony of doubt which may well be surmised, the great prophet of the Tractarians confessed himself a Roman Catholic. Mr. Newman left the Church of England, and with him carried many a waverer. He did not carry off Mr. Arabin, but the escape which that gentleman had was a very narrow one. He left Oxford for a while that he might meditate in complete peace on the step which appeared to him to be all but unavoidable, and shut himself up in a little village on the sea-shore of one of our remotest counties, that he might learn by communing with his own soul whether or no he could with a safe conscience remain within the pale of his mother church.

Things would have gone badly with him there had he been left entirely to himself. Every thing was against him: all his worldly interests required him to remain a Protestant; and he looked on his worldly interests as a legion of foes, to get the better of whom was a point of extremest honour. In his then state of ecstatic agony such a conquest would have cost him little; he could easily have thrown away all his livelihood; but it cost him much to get over the idea that by choosing the Church of England he should be open in his own mind to the charge that he had been led to such a choice by unworthy motives. Then his heart was against him: he loved with a strong and eager love the man who had hitherto been his guide, and yearned to follow his footsteps. His tastes were against him: the ceremonies and pomps of the Church of Rome, their august feasts and solemn fasts, invited his imagination and pleased his eye. His flesh was against him: how great an aid would it be to a poor, weak, wavering man to be constrained to high moral duties, self-denial, obedience, and chastity by laws which were certain in their enactments, and not to be broken without loud, palpable, unmistakable sin! Then his faith was against him: he required to believe so much; panted so eagerly to give signs of his belief; deemed it so insufficient to wash himself simply in the waters of Jordan; that some great deed, such as that of forsaking everything for a true church, had for him allurements almost past withstanding.

Out with the old, in with the new!

I have said before that if you are interested in law and religion, you must read Anthony Trollope. I can’t think of many authors who are more intimately concerned with the quotidian working out of church-state arrangements. As Hawthorne once put it, “Trollope’s novels are solid, substantial, written on the strength of beef and through the inspiration of ale and just as real as if some giant had hewn a great lump out of the earth and put it under a glass case, with all its inhabitants going about their daily business and not suspecting they were being made a show of.”

Trollope’s Barsetshire Novels in particular are concerned with political and cultural change, or “evolution,” within the Anglican Church in English nineteenth century life. Here is a wonderful passage from “Barchester Towers” in which a “new man” representative of the progressively liberalizing episcopacy (Mr. Slope) informs an “old man” (Mr. Harding) about the changes coming to the Church and to English life more broadly:

“You must be aware, Mr. Harding, that things are a good deal changed in Barchester,” said Mr. Slope.

Mr. Harding said that he was aware of it. “And not only in Barchester, Mr. Harding, but in the world at large. It is not only in Barchester that a new man is carrying out new measures and casting away the useless rubbish of past centuries. The same thing is going on throughout the country. Work is now required from every man who receives wages; and they that have to superintend the doing of work, and the paying of wages, are bound to see that this rule is carried out. New men, Mr. Harding, are now needed, and are now forthcoming in the church, as in other professions.”

All this was wormwood to our old friend [Mr. Harding]. He had never rated very high his own abilities or activity; but all the feelings of his heart were with the old clergy, and any antipathies of which his heart was susceptible, were directed against those new, busy, uncharitable, self-lauding men, of which Mr. Slope was so good an example….

Mr. Harding was not a happy man as he walked down the palace pathway, and stepped out into the close. His preferment and pleasant house were a second time gone from him; but that he could put up with. He had been schooled and insulted by a man young enough to be his son; but that he could put up with. He could even draw from the very injuries, which had been inflicted on him, some of that consolation, which we may believe martyrs often receive from the injustice of their own sufferings, and which is generally proportioned in its strength to the extent of cruelty with which martyrs are treated….But the venom of [Mr. Slope’s] harangue had worked into his blood.

“New men are carrying out new measures, and are carting away the useless rubbish of past centuries!” What cruel words these had been; and how often are they now used with the heartless cruelty of a Slope! A man is sufficiently condemned if it can only be shown that either in politics or religion he does not belong to some new school established within the last score of years. He may then regard himself as rubbish and expect to be carted away. A man is nothing now unless he has within himself a full appreciation of the new era; an era in which it would seem that neither honesty nor truth is very desirable, but in which success is the only touchstone of merit. We must laugh at every thing that is established. Let the joke be ever so bad, ever so untrue to the real principles of joking; nevertheless we must laugh–or else beware the cart. We must talk, think, and live up to the spirit of the times, and write up to it too, if that cacoethes be upon us, or else we are naught. New men and new measures, long credit and few scruples, great success or wonderful ruin, such are now the tastes of Englishmen who know how to live.

Dreisbach, “Reading the Bible With the Founding Fathers”

I’m very pleased to give this notice of Professor Daniel L. Dreisbach’s new book, Reading the Bible With the Founding Fathers, which will be published by Oxford University Press in dreisbach-bookDecember. Professor Dreisbach is one of the most important scholars of religion in the founding generation. His earlier book, Thomas Jefferson and the Wall of Separation Between Church and State, as well as his edited volumes, Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate, and The Forgotten Founders on Religion and Public Life, offer vital and erudite insight about the relationship of church and state in the early republic. This volume looks to be essential reading for anyone interested in this area. The publisher’s description follows.

No book was more accessible or familiar to the American founders than the Bible, and no book was more frequently alluded to or quoted from in the political discourse of the age. How and for what purposes did the founding generation use the Bible? How did the Bible influence their political culture?

Shedding new light on some of the most familiar rhetoric of the founding era, Daniel Dreisbach analyzes the founders’ diverse use of scripture, ranging from the literary to the theological. He shows that they looked to the Bible for insights on human nature, civic virtue, political authority, and the rights and duties of citizens, as well as for political and legal models to emulate. They quoted scripture to authorize civil resistance, to invoke divine blessings for righteous nations, and to provide the language of liberty that would be appropriated by patriotic Americans.

Reading the Bible with the Founding Fathers broaches the perennial question of whether the American founding was, to some extent, informed by religious-specifically Christian-ideas. In the sense that the founding generation were members of a biblically literate society that placed the Bible at the center of culture and discourse, the answer to that question is clearly “yes.” Ignoring the Bible’s influence on the founders, Dreisbach warns, produces a distorted image of the American political experiment, and of the concept of self-government on which America is built.

Michael McConnell, “Tradition and the Constitution”

Here is a story with some details of the Center’s Tradition Project conference last week-end, which also links to pictures of the event and various recent reflections by conference participants.

And here is Professor Michael McConnell’s lecture, “Tradition and the Constitution”:

Meshugas About Chickens

That’s the title of this post I have over at the Liberty Law blog, discussing a recent controversy in California related to Yom Kippur. A bit:

As a society becomes more secular, what happens to religious rituals, customs, and ways of life that cannot be explained or justified in secular terms? When the freedom to engage in such practices is no longer presumed to be a good because of a firm commitment to religion as a social value, little stands in the way of its becoming just one more special interest. Religious freedom is then thrown into the bin of social oddities, to be haggled over and negotiated against whatever other idiosyncratic predilections one happens to find in there.

Witness the case of United Poultry Concerns v. Chabad of Irvine. The plaintiff is a California organization devoted to “promoting the respectful and compassionate treatment of domestic fowl” that leads protests, for example, against the use of eggs in the White House Easter-Egg Roll. Indeed, UPC seems to observe a fairly regular schedule of outrage, no doubt because many holidays, religious and otherwise, tend to involve an adversarial relationship with poultry. (With Thanksgiving on the horizon, the group’s web site is showcasing a book called More Than a Meal: The Turkey in History, Myth, Ritual, and Reality.)

Over the last two weeks, UPC has been involved in a legal effort to stop a Jewish practice called kaparot that is performed on the day before Yom Kippur. Only a small number of Jews in the United States perform this ceremony, and it involves a trained rabbi swinging a chicken in the air and then slaughtering the animal. (“Kaparot” means atonement.)

The tireless Josh Blackman, who has been involved with the case, has a very complete description of the proceedings. The long and short of it is that a federal District Court judge issued a temporary restraining order against the practice earlier this month, citing a California state animal-cruelty provision, though the judge would have been well advised to consider both the federal Humane Slaughter Act and the Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of Hialeah (1993) before acting. The judge ordered pre-trial conferences, briefs, and hearings to be conducted and filed immediately thereafter, right smack dab during the most important week in the Jewish calendar.

Perhaps most telling of all was that the hearing on the temporary restraining order was scheduled for October 13, the day after Yom Kippur, which Professor Blackman amusingly analogizes to scheduling a hearing for December 26 on an order to prohibit a ceremony performed on Christmas day. The judge eventually lifted the order just hours before sundown on October 12, rendering it impossible as a practical matter for the synagogue’s members to perform the ceremony.

Indeed, as Professor Blackman notes, the timing of the legal proceeding was obviously calculated by the plaintiffs to cause as much disruption and distress as it possibly could (the lawsuit could have been filed really at any other time), respectful treatment of chickens being one thing and respectful treatment of religious believers quite another. The judge seems to have been either utterly unaware of these issues or utterly uninterested in them.

How Rights Are Like Taffy

I have this short reflection over at the Liberty Law blog, my own contribution of sorts to the symposium on Professor Muñoz’s fine paper and the set of posts it has generated. A bit:

Exemption from laws interfering with such interests might be granted as a matter of legislative grace, but were not constitutionally compelled. The constitutional right of religious freedom was intended to protect a natural right, and like other natural rights, its authority was supreme until precisely the point where its natural limits ran out. Beyond that point, the authority of the state to protect the peace and the rights of others was supreme.

Muñoz is not the first to make this general claim, though he supports it with some important new evidence. Indeed, the claim has been made by, among others, Professor Philip Hamburger in his fine 2004 essay, “More Is Less,” and the general idea can be made to apply to rights of all kinds. The greater the coverage of the right, the more likely that the right will conflict with other interests that a government might wish to protect, and the more qualified the right may become.

As Hamburger puts it:

If a right is defined with greater breadth, will this necessarily stimulate demands for a diminution of its availability? Surely not. Nonetheless, the danger may be inherent in every attempt to expand a right, for at some point, as the definition of a right is enlarged, there are likely to be reasons for qualifying access.

The danger, moreover, is not only that more coverage means greater opportunity for conflict with governmental interests at the periphery of the right. It is that by conceiving of natural rights broadly, and as by their nature in a kind of perpetual give-and-take with governmental interests, even the core of the right becomes negotiable. By and by, we become accustomed to thinking of natural rights just in this way—as just one more set of interests to be balanced by the government as it pursues its own purposes. Rights, in sum, are like taffy. They may be chewy and tough out of the wrapper, but as you stretch them out they become ever thinner, and ever weaker.

Some have contested this general account. Professor John Inazu, for example, has argued that the rights-confinement claim ignores the cultural context within which some rights grow more powerful while others decline. Free speech, after all, seems as powerful as ever, while religious freedom declines. But the ambit of both has expanded greatly over the last century, which suggests that the latter has declined for reasons other than rights-expansion.

I wonder, though, whether rights-expansion and cultural devaluation may be mutually supportive rather than mutually exclusive explanations for the decline of a right. Free speech, for example, has both grown exponentially as a right over the last several decades and has itself come under threats of all kinds in more recent years, as the government plays an ever larger role in the life of the citizenry. In that sense, we could say that more is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state.

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