I’m back from a superb conference orchestrated by Professor Helen Alvaré at the Liberty & Law Center at George Mason Law School on some of the current and future challenges and prospects in law and religion. I’ll have more to say about my paper, “The New Disestablishments,” by and by, but for the present I will note that I was grateful for improving and insightful criticisms from the group, including those of Professor Fred Gedicks, who was my commenter.

One of the things that occurred to me at the conference was that it seems a new school of thought about religious liberty is emerging in some young upstart scholars, in Australia. I’m only just coming to learn of The Australia School, and so I am going to miss what are new and interesting scholars in it. Indeed, calling it The Australia School assumes some kind of unity of thought, and I am certainly not suggesting there is such unity. But at the very least, The Australia School will include scholars like Professor Joel Harrison and his Post-Liberal Religious Liberty: Forming Communities of Charity; Professor Alex Deagon (who presented at the conference) and his From Violence to Peace: Theology, Law and Community; and Professor Neil Foster, who has written about when it is and is not appropriate for courts to decide matters that impinge on religious doctrine. I am missing many, I’m sure (and apologize preemptively to those I have not discussed). I don’t want to overgeneralize, but this is a blog post, and it would be boring not to offer at least some thematic observations about The Australia School. So are there any discernible themes? 

Both Harrison and Deagon are deeply interested in Christian theological concerns, and both offer justifications for religious freedom rooted in theological considerations. Both rely on the work of John Milbank–not identically, but substantially. Indeed, I have a review over here of Harrison’s book, trying in summary form to describe the way Harrison reimagines religious freedom and devises justifications for it that are new and represent a different direction (with words of praise, though there was a criticism or two also!). Foster also is interested in the issue of the relationship of religious doctrine to civil power. And Deagon emphasizes issues of the unity of peaceful co-existence, also through a theological lens. Both the influence of Milbank on these scholars and their theological orientation are notable; I can discern only very few similarly oriented projects over in our corner of the world. One question I’ve been thinking about is just why. 

As I say, I’m just learning about The Australia School and there are likely many differences and disagreements already emerging within it. But it’s a fresh and interesting development in the law and religion world.

I’m happy to be participating in this conference hosted by the Liberty & Law Center at George Mason Law School. I’ll present a paper called “Traditionalist Disestablishments,” a first step in combining my research interests in traditionalist constitutional interpretation with some of the developments occurring in law and religion at the moment. More soon on that. Here is the conference description:

In the United States today, religious individuals and institutions increasingly find themselves seeking exemptions from a wide array of laws and regulations burdening their free exercise. In this environment, it is important to ask about religion’s positive contributions to individuals and to society.  The Liberty & Law Center is therefore hosting a two-day conference on March 24 & 25, 2022 at the Antonin Scalia Law School in order to explore several urgent questions: what goods and values does religious exercise further, including institutional exercise; how religious exercise can not only serve but sometimes better promote the values of equality, dignity, and freedom valorized by the state; and how religious institutions might better understand and communicate the social worth of religion and religious freedom.

Findings will be presented in four panels over the course of two days. To view the agenda and detailed list of speakers, click here. For questions about the event, please email liberty@gmu.edu. We hope you’ll join us!

I’m just back from an excellent conference organized by Professor Cecelia Klingele at the University of Wisconsin on Catholicism and Criminal Law and Justice. The conference was sponsored jointly by the Lumen Christi Institute and Wisconsin’s Center for the Study of Liberal Democracy.

Together with fellow MOJ-er Patrick Brennan, we had a day of reflection and presentation of work concerning the theme. John Stinneford and I are having fun co-authoring a paper on “The Common Law, the Catholic Tradition, and the Criminal Law.” We discuss the idea of tradition in Catholicism and the common law, the important concept of “culpa” or blameworthiness within both traditions, and its evolution across time. More soon on this paper.

I have a little review essay just published by the American Journal of Jurisprudence with this title (Graham Greene, apologies) reviewing Professor Joel Harrison’s recent book, Post-Liberal Religious Liberty: Forming Communities of Charity (CUP 2020). A portion:

“[A]s Joel Harrison observes in his new book, the price extracted from traditional religion for these thawing relations with liberalism was steep. First, the substratum of Christian culture and historical connection with Western nations had to be systematically stripped away to clear a path for the new civil religion of the liberal regime—as Harrison says, a new “true religion” of the modern civic sphere to replace the old one. (24) Second, because traditional religion was always perceived as a threat to the liberal egalitarian political order, it was expanded by that order to encompass an increasing range of phenomena connected to one of liberalism’s own master commitments, individual autonomy. Religion was in this way at once domesticated and subsumed by liberalism, “contained” and trivialized by hypertrophy. (55) Institutional religion, Harrison continues, was “flattened” to what liberalism regards as the most basic constituent fragment, the individual believer. (55) Third, this new capaciousness had the effect of subjecting religion to an assortment of balancing tests at law, in which religion’s importance was perpetually weighed against sundry other quotidian interests. Religion was reduced to one more consideration, no more intrinsically weighty than any other, that the liberal authority could horse-trade and dole out as it pleased. Fourth, it was deemed out of order for government officials and even ordinary citizens to make public appeals to religious authority as a transcendent source of meaning and worth in the activities of the polity. These claims instead had to be translated into the “secular” argot of liberal commitments—“reconceived as just like any other claim of ethical freedom”—to gain admission to the liberal courts of law and politics. (11) If they could not be, they were cordoned off to the “private” sphere. (13)”

In 2020, the Journal of Catholic Legal Studies and the Center for Law and Religion co-hosted a symposium on a draft book by Professors John Breen and Lee Strang: “A Light Unseen: A History of Catholic Legal Education.” Deans of several Catholic law schools, as well as other learned academics, offered comments on the manuscript. Those comments were published by JCLS last year.

Professors Breen and Strang have now offered this thorough and very interesting reply, in the new issue of JCLS. Their remarks are well worth your time.

I am delighted to give this presentation on the right to religious freedom for the Sovereign Military Hospitaller Order of Saint John of Jerusalem, of Rhodes and of Malta (or, less formally, the Order of Malta) this Sunday, October 17, at 2:00 pm. Further details are above. Please do come by!

Mark and I were very pleased last night to host the second session of our Reading Society, an occasion for students and alumni to gather in the evening to discuss a classic work. Our choice for this session was a selection of books from Augustine’s City of God, together with associated materials drawn from the Letter to the Hebrews and elsewhere. As with our first session on Antigone, this one was a huge success. Our discussion centered around two main issues: Augustine’s two-cities theme; and the idea of a people having common “loves.” Our students were thoughtful and brought fresh insights to the material. They clearly had prepared for the discussion!

We will try to organize at least one new session next fall and are already thinking of possibilities.

I was delighted to present a new paper at the University of Arizona Rehnquist Center’s National Conference of Constitutional Law Scholars today. I was on the religion and speech panel, with interesting presentations from Professors Luke Boso; Stephanie Barclay and Justin Collings; and Shaakirrah Sanders.

My paper (not yet in public circulation) is called “Establishment’s Political Priority to Free Exercise,” and it examines which set of principles and commitments underlying each Clause has political priority conceptually, temporally, and as a matter of general significance.

Professor Melissa Murray commented acutely and very helpfully on the draft and the presentation. More soon on this paper.