Movsesian on Markets and Morals

CLR_Bug_Logo_NoTextFor today’s Scholarship Roundup post, I’m going to exercise the host’s privilege and post a new essay of my own, “Markets and Morals: The Limits of Doux Commerce.” The essay, which I wrote for a symposium on Nate Oman’s book, The Dignity of Commerce, will appear in a forthcoming issue of the William and Mary Business Law Review. The doux commerce thesis holds that the market tends to promote the liberal virtues of pluralism and religious tolerance. Following Burke, I argue that the thesis gets things backwards. This was a fun essay to write, as it allowed me to go back and re-read the actual Enlightenment thinkers, as well as Alan Bloom’s great essay on The Merchant of Venice, which play figures prominently in Nate’s book.

Here’s the abstract:

In this essay for a symposium on Professor Nathan Oman’s new book, “The Dignity of Commerce,” I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman’s argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called “doux commerce” thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke’s critique from tradition, which suggests we should be careful attributing too much to markets’ ability to promote liberal pluralism. According to Burke, it is the Western tradition, including religion, and not commerce, which creates the tolerant, pluralist marketplace of the doux commerce thesis. That Burke was correct is suggested by several historical examples and by contemporary events in the United States and across the globe. That is not to say that Oman is entirely wrong about the potential political benefits of the market, only that we should be careful not to overstate them.

Breidenbach, “Conciliarism and the American Founding”

In the book, “Silence,” by Shusaku Endo, concerning the, shall we say, cool reception of Jesuit missionaries in Japan, there is a powerful line uttered by the despairing old Jesuit about Japanese resistance to Christianity: “This country is a swamp…a more terrible swamp than you can imagine. Whenever you plant a sapling in this swamp the roots begin to rot, the leaves grow yellow and wither. And we have planted the sapling of Christianity in this swamp.”

I thought about this in reading historian Michael Breidenbach’s careful and superb article (which I am late in noticing), Conciliarism and the American Founding (unfortunately behind a pay wall, but well worth it). Breidenbach argues that the extension of toleration to Roman Catholics in America was highly unusual: so what explains it?

Breidenbach points to one issue in particular: early American Catholics’ rejection of papal infallibility and their preference for “conciliarism”–the location of true ecclesiastical power in councils rather than in popes. Breidenbach writes, “Conciliarists provided important intellectual contributions to the transition from the hierocratic, church-over-state arrangements of the Middle Ages to early modern theories on the juridical separation of church and state.” Conciliarism smoothed the way for Catholics to “fit” their religion within the overarching political theory of the United States (including, I would add, its potent and still-thriving civil religion), and in consequence made toleration for their views more probable. Breidenbach includes a long and illuminating history of the Jansenist defense of conciliarism in 17th century France–again, well worth your time–that was important in the development of conciliarism.

Connected to the conciliarism of American Catholics was their rejection of any political aspirations for the Church–a kind of non-interventionism which rendered them possible subjects for toleration in the new American dispensation. The civil state was the unquestioned sovereign for these Catholics, not the Church.

Breidenbach writes as a historian, of course, and does not openly praise or condemn these developments. The plant of Christianity (and Catholicism specifically) obviously did not encounter the same type of soil that it did in Japan. The soil changed the plant–made the plant accommodate itself to the soil’s demands, or else die. Indeed, it is often said that in America, all religions become Americanized, and the talk of conciliarism reminds me a bit of Professor Sally Gordon’s discussion of the flattening out (hierarchically speaking) of Christianity in America once it adopted the corporate form. Breidenbach’s article made me wonder, in the long run and as the American state continues to grow, which soil actually will prove the less hospitable. Read Breidenbach!

Barclay & Rienzi, “Constitutional Anomalies”

Allow people to pose religious objections to generally-applicable laws, the argument goes, and you will end up with chaos, a world in which every person is a law unto himself. That argument carried the day twenty-seven years ago in Employment Division v. Smith, and resurfaced as recently as last week, during oral argument in Masterpiece Cakeshop. A new article by Stephanie Barclay (Becket) and Mark Rienzi (Catholic University-Columbus School of Law), “Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Objections,” maintains that the argument is overstated. The authors argue that religious accommodations are analogous to customary “as-applied” challenges in constitutional law, which have not destroyed the rule of law. Here’s the abstract:

In the wake of Hobby Lobby and now in anticipation of Masterpiece Cakeshop, the notion that religious exemptions are dangerously out of step with norms of constitutional jurisprudence has taken on renewed popularity within the academy. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey. And such a scheme will result in a tidal wave of religious claimants striking down government action at every turn.

Our article presents a novel observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenge offered as a default remedy elsewhere in constitutional adjudication. Furthermore, under this form of as-applied adjudication, courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror exemptions critics fear in the context of religious exercise. This is true even in the hotly debated context of anti-discrimination laws.

The article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. In fact, religious cases as a percentage of the total reported case load appear to have decreased after Hobby Lobby. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.

Goodrich & Busick, “Sex, Drugs, and Eagle Feathers”

Here is an interesting-looking article by Luke Goodrich and Rachel Busick, both of the Becket Fund, on religious freedom cases since the Hobby Lobby case, Sex, Drugs, and Eagle Feathers: An Empirical Study of Religious Freedom Cases, forthcoming in the Seton Hall Law Review. Goodrich and Busick argue that, notwithstanding predictions that the Hobby Lobby case would open the proverbial floodgates, religious liberty cases actually remain rare. Here’s the abstract:

This Article presents one of the first empirical studies of federal religious freedom cases since the Supreme Court’s landmark decision in Hobby Lobby. Critics of Hobby Lobby predicted that it would open the floodgates to a host of novel claims, transforming “religious freedom” from a shield for protecting religious minorities into a sword for imposing Christian values in the areas of abortion, contraception, and gay rights.

Our study finds that this prediction is unsupported. Instead, we find that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly underrepresented. And while there was an uptick of litigation over the Affordable Care Act’s contraception mandate — culminating in Hobby Lobby and Little Sisters of the Poor — those cases have subsided, and no similar cases have materialized. Courts continue to weed out weak or insincere religious freedom claims; if anything, religious freedom protections are underenforced.

Our study also highlights three important doctrinal developments in religious freedom jurisprudence. The first is a new circuit split over the Religious Freedom Restoration Act. The second is confusion over the relationship between the Free Exercise and Establishment Clauses that is currently plaguing litigation over President Trump’s travel ban. The third is a new path forward for the Supreme Court’s muddled Establishment Clause jurisprudence.

New paper: “On the Uses of anti-Christian Identity Politics”

Here’s another new paper of mine: On the Uses of anti-Christian Identity Politics. The abstract is below.

This short essay, written for a conference on “Faith, Sexuality, and the Meaning of Freedom” held at Yale Law School in January 2017, briefly explores the emerging phenomenon of anti-Christian identity politics. The essay focuses on one particular legal source of it: a recondite provision of the so-called Treaty of Tripoli of 1796, which states that “the government of the United States is not, in any sense, founded on the Christian religion.” The uses to which the phrase has been put, it turns out, are more important than its confused and obscure historical meaning. In evaluating anti-Christian identity politics in only some of these uses, the essay considers the recent claim by Professor Mark Lilla that contemporary Americans — and American liberals in particular — ought to abandon “the politics of identity” in favor of a politics of shared citizenship.

Lilla is right that identity politics as practiced today have further corroded the commonalities that remain among Americans. Identity politics also render compromise on various culture-war issues more difficult: any policy or legal victory for the opposition, however small, assumes additional symbolic power and must therefore be resisted all the more fiercely. Yet the pathologies of identity politics are only symptoms of a more potent sickness in American political and cultural life. Americans, as citizens, share less and less. They disagree in deepening ways about the nature of the political and moral good, about justice, and about what sort of people they are and aspire to be. In short, identity politics are not the cause of, but a response to, political and cultural fragmentation. And anti-Christian identity politics, like Christian identity politics, represent one strain of that response — one ostensible point of rendezvous for a nation whose people are increasingly disaffected with and alienated from one another.

New paper: “The Two Separations”

Here’s a new paper of mine, The Two Separations. Here’s the abstract:

There is nothing self-evidently attractive about separation — whether of church and state or anything else — as a model for individual or collective life. Pursuing separation is not like pursuing knowledge or friendship — ends that are intrinsically good. Separation must be justified by some contingent reason. Though the Constitution speaks of the free exercise of “religion” and “religion’s” non-establishment, much of the confusion about separation as an American civic ideal results from a failure to focus on the specifically historical and contingent justifications for it. These justifications concern not “religion” in general or in the abstract but Christianity in specific — Christianity being, as a historical and cultural matter, the central religious tradition of the United States.

These historical justifications have taken two cardinal forms. The first concerns the politico-theological benefits that are believed to devolve onto Christian churches, or onto Christian believers, from division from the state, and the general social and political advantages derived therefrom. The second involves the secular benefits to the liberal democratic state of unbreachable barriers against the civic and cultural influence of Christianity. The first justification is more ancient, but the second is more powerful today. The first is oriented positively, and the second negatively, toward the cultural and political value of Christianity in the United States. The first sees Christianity as precious. The second sees it as irrelevant or even obnoxious.

This chapter distinguishes and explores the two separations — separation as a specifically Christian piece of political theology, in large part for the benefit of a Christian civil society; and separation as a specifically secular position for the benefit of a liberal society that wishes to divest from and repudiate Christianity. It then describes the allure of equality and nondiscrimination as church-state ideals, their ascendancy in late twentieth century constitutional law, and the sense in which they are believed to have supplanted separation.

But neither equality nor nondiscrimination delivers what it promises: a valueless perspective on the social and political worth of Christianity. In fact, their perspective is decidedly negative. The chapter explains this claim by comparing the use of these principles in the contexts of race and sex discrimination, where the overriding assumption is that race and sex are fundamentally irrelevant considerations, and obnoxious and illegitimate bases on which to make laws and to order society. Transposed to the context of religion — and, as this chapter argues, the transposition in reality concerns Christianity specifically — a similar assumption holds: that Christianity is fundamentally an irrelevant, or even an obnoxious, and illegitimate, influence in the making of laws or the structuring of the cultural and political realms. Indeed, in a society in which Christianity has had such overwhelming predominance, insisting on equality is tantamount to squelching it. This view is not neutral as to the value of Christianity in contemporary American politics and society. It is nothing less than an expression of the second separation.

Zelinsky, “Taxing the Church”

From Edward Zelinsky of Cardozo Law School comes this timely and important book Zelinsky.jpegabout the relationship of religion and taxation in American law, Taxing the Church: Religion, Exemptions, Entanglement, and the Constitution. I was very pleased to read the entire manuscript in draft and to provide a blurb for the jacket: “With great erudition and careful attention to the many complexities of our system of taxation and tax exemption for religious institutions, Professor Zelinsky makes a contextually sensitive case for taxation in certain contexts and not others. His discussion of ‘enforcement entanglement’ and ‘borderline entanglement’ is particularly rich and illuminating.” The publisher is Oxford University Press and here is the description.

This book explores the taxation and exemption of churches and other religious institutions, both empirically and normatively. This exploration reveals that churches and other religious institutions are treated diversely by the federal and state tax systems. Sectarian institutions pay more tax than many believe. In important respects, the states differ among themselves in their respective approaches to the taxation of sectarian entities. Either taxing or exempting churches and other sectarian entities entangles church and state. The taxes to which churches are more frequently subject – federal Social Security and Medicare taxes, sales taxes, real estate conveyance taxes – fall on the less entangling end of the spectrum. The taxes from which religious institutions are exempt – general income taxes, value-based property taxes, unemployment taxes – are typically taxes with the greatest potential for church-state enforcement entanglement. It is unpersuasive to reflexively denounce the tax exemption of religious actors and institutions as a subsidy. Tax exemption can implement the secular, non-subsidizing goal of minimizing church-state enforcement entanglement and thus be regarded as part of a normative tax base.

Taxing the church or exempting the church involves often difficult trade-offs among competing and legitimate values. On balance, our federal system of decentralized legislation reasonably make these legal and tax policy trade-offs, though there is room for improvement in particular settings such as the protection of internal church communications and the expansion of the churches’ sales tax liabilities.

Boersma on Religious Law Schools

pictureCongratulations to our former Law and Religion Fellow, John Boersma (left), for placing his article, The Accreditation of Religious Law Schools in Canada and the United States, in the current issue of the BYU Law Review. John, who’s now pursuing a PhD at LSU, wrote the paper in my comparative law and religion seminar a couple years ago.

Here’s the abstract:

Ongoing litigation in Canada suggests that the legal status of religiously affiliated law schools could be in jeopardy. In Canada, regulatory authorities have sought to deny accreditation status to a religiously affiliated law school (Trinity Western University) due to its commitment to a traditional Christian understanding of marriage. According to Canadian provincial authorities, this commitment has a discriminatory effect on LGBT students. Similar events could potentially occur in the United States. It is possible that American regulatory bodies could seek either to rescind or withhold accreditation from a religiously affiliated law school because of the discriminatory effects of its policies.

This comparative Article argues that as a matter both of public policy and law, the regulatory bodies concerned with the accreditation of law schools in both Canada and the United States have ample reason to accredit religiously affiliated law schools. First, as a matter of public policy, diversity in the type of law schools is beneficial due to the pluralism it engenders. Pluralism has long been recognized as a force for social stability in liberal democracies and is continually cited as beneficial by both Canadian and American courts. Furthermore, as a matter of law, both Canada and the United States provide for a robust protection of religious freedom that encompasses religiously affiliated law schools. This Article concludes that, as a result, regulatory authorities in Canada and the United States ought to encourage the proliferation of religiously affiliated law schools.

Readers can download the article here. Keep up the good work, John!

Online Symposium: Two Concepts of Religious Liberty

The Law and Religion Forum is delighted to host an online symposium this month on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” which appears in the current volume of the American Political Science Review (May 2016). Among other things, Muñoz (Notre Dame) argues that, from an originalist perspective, the late Justice Antonin Scalia was correct, in Employment Division v. Smith (1990), that the Free Exercise Clause does not require the state to grant believers accommodations from generally applicable and neutral laws. The Framers’ version of natural rights constitutionalism, he contends, does not require religious exemptions. The original meaning of the clause thus confirms Scalia’s reading.

Muñoz leads off the symposium with a post today. Throughout the month of September, we will post responses from Gerard Bradley (Notre Dame), Donald Drakeman (Notre Dame), Matthew Franck (Witherspoon Institute), George Thomas (Claremont McKenna), Jack Rakove (Stanford), and Corey Brettschneider (Brown). Muñoz will return at the end to offer his thoughts on the respondents’ contributions. Enjoy!

 

Last Night at First Things

me and Rusty

L-R: Movsesian, Reno

Thanks to Rusty Reno and First Things Magazine for hosting a dinner seminar last night on my new paper, Of Human Dignities. (That’s a picture of me and Rusty at the event, listening in rapt attention to one of the many insightful interventions). I greatly enjoyed the discussion and am grateful to all the participants for their careful readings of the paper. For those who would like to download a copy of the paper, which appears in the current edition of the Notre Dame Law Review, please click here.

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