The Cambridge Companion to the First Amendment and Religious Liberty (2020)

This volume is now available for purchase, with many worthwhile and interesting contributions. I have an essay in here as well, The Two Separations.

Check it out!

Conference on Catholic Legal Education: “A Light Unseen”

On February 14, the Center will co-host, along with the Journal of Catholic Legal Studies, a conference on a forthcoming book by Professors John Breen (Loyala University Chicago) and Lee Strang (University of Toledo), “A Light Unseen: A History of Catholic Legal Education.” Panelists include Deans Kathleen Boozang (Seton Hall), Marcus Cole (Notre Dame), Vincent Rougeau (Boston College), Michael Simons (St. John’s), William Treanor (Georgetown), and Robert Vischer (St. Thomas), and Professors Angela Carmella (Seton Hall), Teresa Collett (St. Thomas), Richard Garnett (Notre Dame), Jeff Pojanowski (Notre Dame), and Amy Uelmen (Georgetown). Details and registration are at this link. Hope you can join us!

Conference at Washington University on the Religion Clauses

I’m at Washington University in St. Louis today for a conference put together by Professor John Inazu on “The Religion Clauses.” I’ll be talking about my recent piece, First Amendment Traditionalism, which extends the arguments about traditionalism in constitutional interpretation that I first made in The Traditions of American Constitutional Law. If you happen to be in the area, please do come by and say hello, as the conference is free and open to the public.

Christianity and Liberalism before the Fall

Nathan Chapman (Georgia) has posted a very interesting new paper on SSRN, Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause. His paper relates to a specific, historical example of federal funding for religious schools, but has implications for much broader Establishment Clause issues as well.

Chapman explains that, for much of the 19th Century, the federal government gave significant financial support to Christian missionary schools that educated Native Americans. Even more: virtually no one saw the financial support of these schools as an Establishment Clause problem. Evidently, Americans at the time–or at least the elites whose opinions mattered–did not perceive public support for instruction in Christian morality as a constitutional issue. That is so, Chapman argues, because elites at the time did not perceive basic Christian morality as sectarian and threatening in the way their counterparts do today. Borrowing from sociologist Charles Taylor, Chapman writes that “elite white Americans shared a ‘social imaginary’—or social paradigm—of ‘civilization’ that merged education, republicanism, and at least a modicum of Christianity.”

This is an extremely important insight for understanding American culture, and, therefore, American law. Historically, Americans have seen Christianity, especially its Protestant iteration, as consistent with liberalism and progress. Writing in the 1830s, Tocqueville observed that in the Old World, everyone understood that Christianity and liberty were rivals; but Americans had so completely run the two together in their minds that it was impossible for them to conceive of the one without the other. The conflict between Christianity and liberty that informs today’s culture wars simply did not exist for most of our history. As a consequence, the issues that preoccupy us today had little salience.

Of course, things are very different now. Maybe something went wrong, or maybe, as Patrick Deneen argues, the conflict was always there, waiting to hatch out. Anyhow, American elites today, especially legal elites, do not see Christianity and liberty as natural allies. This makes “translating” (Chapman’s term) the nineteenth-century practice into contemporary constitutional law rather tricky–even assuming translation is appropriate. The Establishment Clause was fashioned in a very different culture from our own, one that assumed a harmonious relationship between revelation and reason and that little relied on law to mediate conflicts between them. That is no longer the case, and the implications for our law have yet to be worked out.

Wilson & Drakeman’s Church-State Reader

I’m delighted to notice this new church-state reader put together by John F. Wilson (Princeton, emeritus) and our longtime friend and center board member, Donald L. Drakeman, Church and State in American History: Key Documents, Decisions, and Commentary from Five Centuries (4th edition, Routledge). Don kindly informs me that what is new about this edition of the reader is a greatly expanded historical section before the American founding, beginning with the Biblical texts and proceeding through the early Christian and medieval era. It also has the American context, the big Supreme Court cases, and so on.

Every time I teach a church-state course of any kind, I cobble together material from a number of different sources as a kind of rapid introduction for students to this area of the law. This book looks like a handy solution. And I’m sure it’s written with Don’s typical flair and panache.

Here is the description from Routledge:

Church and State in American History illuminates the complex relationships among the political and religious authority structures of American society, and illustrates why church-state issues have remained controversial since our nation’s founding. It has been in classroom use for over 50 years.

John Wilson and Donald Drakeman explore the notion of America as “One Nation Under God” by examining the ongoing debate over the relationship of church and state in the United States. Prayers and religious symbols in schools and other public spaces, school vouchers and tax support for faith-based social initiatives continue to be controversial, as are arguments among advocates of pro-choice and pro-life positions. The updated 4th edition includes selections from colonial charters, Supreme Court decisions, and federal legislation, along with contemporary commentary and incisive interpretations by modern scholars. Figures as divergent as John Winthrop, Anne Hutchinson, James Madison, John F. Kennedy, and Sandra Day O’Connor speak from these pages, as do Robert Bellah, Clarence Thomas, and Ruth Bader Ginsberg.

The continuing public and scholarly interest in this field, as well as a significant evolution in the Supreme Court’s church-state jurisprudence, renders this timely re-edition as essential reading for students of law, American History, Religion, and Politics.

On Blue Laws

Here is something interesting from a book I’m reviewing now by Professor Greg Weiner, The Political Constitution: The Case Against Judicial Supremacy, which takes Justice Felix Frankfurter’s later views of constitutional jurisprudence as in some respects a model for today. Here, Weiner discusses Frankfurter’s view of the Blue Laws, which forbade a wide range of commercial activities on Sunday in order to recognize the sabbath day for Christians, in a famous case called McGowan v. Maryland (1961). The Court upheld these laws for a rather peculiar reason: that “the record is barren” of reasons to *disprove* that forbidding the sales of certain products on Sunday does not contribute to the rationalized well-being of the citizenry.

Justice Frankfurter concurred. Here is a bit from the book with some material from the Frankfurter opinion quoted:

The effect of the law was to set Sundays apart as ‘a day of rest not merely in a physical, hygienic sense, but in the sense of a recurrent time in the cycle of human activity when the rhythms of existence changed, a day of particular associations which came to have their own autonomous values for life.’ Perhaps most important, rather than seeing the case as one pitting lone objectors against the state, Frankfurter recognized the individual’s situation in the context of a political community whose ‘spirit…expresses in goodly measure the heritage which links it to its past’ and which could reasonably decide to create an ‘atmosphere of general repose’ that would be disrupted by exempting individuals from the law.

In other words, the majority of the community was entitled to impose regulations that created what it regarded as conditions for living a good life, which included leisure, community interaction, and, yes, a particular convenience for members of the dominant religion….The religious heritage of blue laws was part of the traditions of a community, which could not regard itself as existing simply in the here and now. (97-98)

I’ll have more to say about the book, and claims like the one above, soon.

The Religion of Prison Abolition

A stirp of liberation theology, as it were. A new book discussing religious features or religious phenomena attending the movement from the far left to abolish all prisons. The book is Break Every Yoke: Religion, Justice, and the Abolition of Prisons (Oxford), by “activist-scholars” Joshua Dubler and Vincent Lloyd.

“Changes in the American religious landscape enabled the rise of mass incarceration. Religious ideas and practices also offer a key for ending mass incarceration. These are the bold claims advanced by Break Every Yoke, the joint work of two activist-scholars of American religion. Once, in an era not too long past, Americans, both incarcerated and free, spoke a language of social liberation animated by religion. In the era of mass incarceration, we have largely forgotten how to dream-and organize-this way. To end mass incarceration we must reclaim this lost tradition. Properly conceived, the movement we need must demand not prison reform but prison abolition.

Break Every Yoke weaves religion into the stories about race, politics, and economics that conventionally account for America’s grotesque prison expansion of the last half century, and in so doing it sheds new light on one of our era’s biggest human catastrophes. By foregrounding the role of religion in the way political elites, religious institutions, and incarcerated activists talk about incarceration, Break Every Yoke is an effort to stretch the American moral imagination and contribute resources toward envisioning alternative ways of doing justice. By looking back to nineteenth century abolitionism, and by turning to today’s grassroots activists, it argues for reclaiming the abolition “spirit.””

International Moot Court Competition in Law & Religion: Rome, March 2020

International Moot Court Competition in Law & Religion: Rome, March 2020

Law students: mark your calendars this spring for a remarkable opportunity in the Eternal City.

The European Academy of Religion is hosting the third International Moot Court Competition in Law and Religion. The competition will take place in Rome from March 5th to March 7th, 2020 and is open to law students in both American and European schools.

Student teams will argue a hypothetical case before two courts, the European Court of Human Rights and the U.S. Supreme Court. Scholars and actual judges from both jurisdictions will serve as judges. After a verdict, a roundtable discussion will debate the varying argumentative skills used and highlight the different cultural points of view of the two Courts.

The program is a wonderful chance for students to build advocacy skills, learn about international legal systems, and engage in legal analysis at the intersection of law and religion. The competition case this year involves a state hospital policy prohibiting employees from wearing visible religious signs in public, and the question of what appropriate accommodations are required by statute.

For more details, as well as entry information, please click here.

A Defense of Religious Freedom from the Human Rights Perspective

At our 2014 conference in Rome with LUMSA on international religious freedom and the global clash of values, we were delighted to meet Professor Heiner Bielefeldt, then the United Nation’s Special Rapporteur on Freedom of Religion or Belief. He gave an impassioned talk at the conference.

Professor Bielefeldt, who teaches at the University of Erlangen-Nuremberg, has a new co-authored book: Religious Freedom Under Scrutiny (University of Pennsylvania Press), together with Michael Wiener.

“Freedom of religion or belief is deeply entrenched in international human rights conventions and constitutional traditions around the world. Article 18 of the Universal Declaration of Human Rights enshrines the right to freedom of thought, conscience, and religion as does the International Covenant on Civil and Political Rights, which the United Nations General Assembly adopted in 1966. A rich jurisprudence on freedom of religion or belief is based on the European Convention on Human Rights, drafted in 1950 by the Council of Europe. Similar regional guarantees exist in the framework of the Organization of American States as well as within the African Union. Freedom of religion or belief has found recognition in numerous national constitutions, and some governments have shown a particularly strong commitment to the international promotion of this right.

As Heiner Bielefeldt and Michael Wiener observe, however, freedom of religion or belief remains a source of political conflict, legal controversy, and intellectual debate. In Religious Freedom Under Scrutiny, Bielefeldt and Wiener explore various critiques leveled at this right. For example, does freedom of religion contribute to the spread of Western neoliberal values to the detriment of religious and cultural diversity? Can religious freedom serve as the entry point for antifeminist agendas within the human rights framework? Drawing on their considerable experience in the field, Bielefeldt and Wiener provide a typological overview and analysis of violations around the world that illustrate the underlying principles as well as the relationship between freedom of religion or belief and other human rights.

Religious Freedom Under Scrutiny argues that without freedom of religion or belief, human rights cannot fully address our complex needs, yearnings, and vulnerabilities as human beings. Furthermore, ignoring or marginalizing freedom of religion or belief would weaken the plausibility, attractiveness, and legitimacy of the entire system of human rights.”

On the Hospital

Here is an extremely interesting book on the rise of the hospital in the twelfth and thirteenth century, and how it owes its origins to Christian commitments and medieval political economy. The book is The Medieval Economy of Salvation: Charity, Commerce, and the Rise of the Hospital (Cornell University Press), by Adam J. Davis.

“In The Medieval Economy of Salvation, Adam J. Davis shows how the burgeoning commercial economy of western Europe in the twelfth and thirteenth centuries, alongside an emerging culture of Christian charity, led to the establishment of hundreds of hospitals and leper houses. Focusing on the county of Champagne, he looks at the ways in which charitable organizations and individuals—townspeople, merchants, aristocrats, and ecclesiastics—saw in these new institutions a means of infusing charitable giving and service with new social significance and heightened expectations of spiritual rewards.

Hospitals served as visible symbols of piety and, as a result, were popular objects of benefaction. They also presented lay women and men with new penitential opportunities to personally perform the works of mercy, which many embraced as a way to earn salvation. At the same time, these establishments served a variety of functions beyond caring for the sick and the poor; as benefactors donated lands and money to them, hospitals became increasingly central to local economies, supplying loans, distributing food, and acting as landlords. In tracing the rise of the medieval hospital during a period of intense urbanization and the transition from a gift economy to a commercial one, Davis makes clear how embedded this charitable institution was in the wider social, cultural, religious, and economic fabric of medieval life.”

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