Today is the Feast of St. John Henry Cardinal Newman, an English Cardinal and theologian, and one of the most incisive thinkers about tradition and change of the last two centuries. I reproduce below some selected portions of Cardinal Newman’s wonderful essay, An Essay on the Development of Christian Doctrine. In the work, Cardinal Newman describes the nature of “doctrinal development” as an essential feature of the elaboration of eternal truths for finite minds like ours. In Part II, Chapter 5, he proposes seven criteria to determine whether a particular development is genuine, or instead a “corruption” or “perversion,” of the original. I’ve found these categories and insights illuminating over the years in thinking about tradition and change in American law. But do read the whole essay to honor the day.

I venture to set down seven Notes of varying cogency, independence and applicability, to discriminate healthy developments of an idea from its state of corruption and decay, as follows:—There is no corruption if it retains one and the same type, the same principles, the same organization; if its beginnings anticipate its subsequent phases, and its later phenomena protect and subserve its earlier; if it has a power of assimilation and revival, and a vigorous action from first to last…

PRESERVATION OF TYPE: every calling or office has its own type, which those who fill it are bound to maintain; and to deviate from the type in any material point is to relinquish the calling. Thus both Chaucer and Goldsmith have drawn pictures of a true parish priest; these differ in details, but on the whole they agree together, and are one in such sense, that sensuality, or ambition, must be considered a forfeiture of that high title. Those magistrates, again, are called “corrupt,” who are guided in their judgments by love of lucre or respect of persons, for the administration of justice is their essential function. Thus collegiate or monastic bodies lose their claim to their endowments or their buildings, as being relaxed and degenerate, if they neglect their statutes or their Rule. Thus, too, in political history, a mayor of the palace, such as he became in the person of Pepin, was no faithful development of the office he filled, as originally intended and established…

CONTINUITY OF PRINCIPLE: …A development, to be faithful, must retain both the doctrine and the principle with which it started. Doctrine without its correspondent principle remains barren, if not lifeless…On the other hand, principle without its corresponding doctrine may be considered as the state of religious minds in the heathen world, viewed relatively to Revelation; that is, of the “children of God who are scattered abroad.”

POWER OF ASSIMILATION: …[D]octrines and views which relate to man are not placed in a void, but in the crowded world, and make way for themselves by interpenetration, and develope by absorption. Facts and opinions, which have hitherto been regarded in other relations and grouped round other centres, henceforth are gradually attracted to a new influence and subjected to a new sovereign. They are modified, laid down afresh, thrust aside, as the case may be. A new element of order and composition has come among them; and its life is proved by this capacity of expansion, without disarrangement or dissolution. An eclectic, conservative, assimilating, healing, moulding process, a unitive power, is of the essence, and a third test, of a faithful development.

LOGICAL SEQUENCE: Logic is the organization of thought, and, as being such, is a security for the faithfulness of intellectual developments; and the necessity of using it is undeniable as far as this, that its rules must not be transgressed…Each argument is brought for an immediate purpose; minds develope step by step, without looking behind them or anticipating their goal, and without either intention or promise of forming a system. Afterwards, however, this logical character which the whole wears becomes a test that the process has been a true development, not a perversion or corruption, from its evident naturalness; and in some cases from the gravity, distinctness, precision, and majesty of its advance, and the harmony of its proportions, like the tall growth, and graceful branching, and rich foliage, of some vegetable production…

ANTICIPATION OF ITS FUTURE: …[S]ince developments are in great measure only aspects of the idea from which they proceed, and all of them are natural consequences of it, it is often a matter of accident in what order they are carried out in individual minds; and it is in no wise strange that here and there definite specimens of advanced teaching should very early occur, which in the historical course are not found till a late day. The fact, then, of such early or recurring intimations of tendencies which afterwards are fully realized, is a sort of evidence that those later and more systematic fulfilments are only in accordance with the original idea.

CONSERVATIVE ACTION UPON ITS PAST: As developments which are preceded by definite indications have a fair presumption in their favour, so those which do but contradict and reverse the course of doctrine which has been developed before them, and out of which they spring, are certainly corrupt; for a corruption is a development in that very stage in which it ceases to illustrate, and begins to disturb, the acquisitions gained in its previous history…A true development, then, may be described as one which is conservative of the course of antecedent developments being really those antecedents and something besides them: it is an addition which illustrates, not obscures, corroborates, not corrects, the body of thought from which it proceeds; and this is its characteristic as contrasted with a corruption.

CHRONIC VIGOUR: Since the corruption of an idea, as far as the appearance goes, is a sort of accident or affection of its development, being the end of a course, and a transition-state leading to a crisis, it is, as has been observed above, a brief and rapid process. While ideas live in men’s minds, they are ever enlarging into fuller development: they will not be stationary in their corruption any more than before it; and dissolution is that further state to which corruption tends. Corruption cannot, therefore, be of long standing; and thus duration is another test of a faithful development.

Si gravis, brevis; si longus, levis; is the Stoical topic of consolation under pain; and of a number of disorders it can even be said, The worse, the shorter.

Here are some important law-and-religion news stories from around the web:

• In Hindu American Foundation, Inc. v. Kish, a California federal district court ruled that the Hindu American Foundation lacks standing to challenge the California Civil Rights Department’s stance on caste discrimination being a part of Hindu teachings. The court found the organization’s complaint vague and insufficient in demonstrating whom it represented. The complaint broadly claimed to defend the rights of “all Hindu Americans” and “all Americans of faith.”
• A Texas federal court imposed sanctions on Southwest Airlines for not adhering to a previous order which found the Airline guilty of violating Title VII by firing an employee who shared her religious views on social media. The court required three of the airline’s lawyers to attend religious liberty training by Alliance Defending Freedom (ADF), a Christian legal non-profit. In response to Southwest’s objection to training with an “ideological organization,” the court emphasized ADF’s track record in winning Supreme Court cases on religious liberties.
• In Union Gospel Mission of Yakima, Wash. v. Ferguson, a Washington federal district court dismissed, on federalism grounds, the plaintiff’s challenge to the the Washington Supreme Court’s interpretation of the state’s ministerial exception doctrine. The federal court saw the plaintiff’s challenge as an indirect attempt to overturn a prior state court decision in violation of the Rooker-Feldman Doctrine.
• In Tilsen v. Benson, the Connecticut Supreme Court declined to a ketubah, or Jewish marriage contract, in an alimony decision. The court determined that the contract was vague and that enforcing it could breach the establishment clause. The court noted that parties could craft clear agreements that respect religious beliefs without causing legal conflicts.
• In David v. South Congregational Church, a Massachusetts court dismissed a member’s defamation lawsuit against a church and its leaders. The member was removed from church committees over alleged unethical financial conduct. The court declined to intervene in church disciplinary decisions.
• Three musicians have filed a lawsuit against the North Carolina Symphony alleging religious discrimination following their termination for refusing the Symphony’s 2021 COVID-19 vaccine mandate. The plaintiffs claim the Symphony violated the First Amendment and Title VII of the Civil Rights Act of 1964 by mandating the vaccine despite their religious objections. The Symphony, which reversed its vaccine mandate in August but did not reinstate the musicians, denies any wrongdoing and insists its actions were in line with health guidelines and the policies of other symphonies.

At the Law and Liberty site, I review Stephen Bullivant’s fine new book on the rise of the Nones and argue that the middle is falling out of American religion in favor of the extremes on either end. Here’s an excerpt:

Bullivant rejects the conventional view that nonverts tend to come from the ranks of people whose religious affiliation was indifferent to begin with—those who were Christians in name only. Many Nones “were once genuinely believing and practicing—even ‘painfully devout,’” he writes. It isn’t simply weak Christians who are drifting away, but true believers. As a consequence, he believes, the crisis facing American Christianity is real and worse than many would like to admit.

As evidence, Bullivant points to data that shows that more and more Americans who regularly attended church as children become Nones as adults. “These were church kids,” he notes. But attending church regularly as a kid isn’t really a proxy for religious commitment; lots of kids go because their parents make them. And some data refutes Bullivant’s argument. For decades, the GSS has asked respondents to rate the strength of their religious affiliation. The percentage of respondents who say their religious affiliation is “strong” has gone down a bit since 1990, but not by much: from 37 percent to 34 percent.

By contrast, the percentage of respondents who rate their religious affiliation as only “somewhat strong” has gone down dramatically, from 14 percent to 4 percent. As in so many areas of American life, the middle seems to be dropping out in favor of the extremes on either end. If current trends continue, American religion will be polarized between very committed believers and people who reject organized religion entirely. That’s not a recipe for a harmonious society.

Of course, even if it’s only nominal Christians who are leaving, that itself reflects something important about the religion’s waning influence in American life, as Bullivant insightfully observes. Nominal adherence tells you how a brand is doing, which is why “successful sports teams often have vast numbers of casual fans.” It’s fun to root for a winning team. When a team falls on hard times, its fair-weather fans desert it. More than anything else, it seems, that describes what’s happening to American Christianity right now.

You can read the full review here.

To all who celebrate today, a very Happy Easter. Christ is Risen.

The Center for Law and Religion is delighted to announce the lineup for the sixth biennial Colloquium in Law and Religion, scheduled for Fall 2022. The Colloquium brings outside scholars and jurists to St. John’s to teach a seminar for selected students. Speakers present drafts on law and religion; students are graded on the basis of response papers and class participation.

This year’s Colloquium speakers are Judge Richard J. Sullivan of the U.S. Court of Appeals for the Second Circuit and Professors J. Joel Alicea (Catholic University School of Law), Nathan Chapman (University of Georgia School of Law), Nicole Stelle Garnett & Fr. Pat Reidy (Notre Dame Law School and Yale Law School student), Anna Su (University of Toronto Faculty of Law), and Nelson Tebbe (Cornell Law School).

For more information about the Colloquium, please contact Center Co-Directors Mark Movsesian and Marc DeGirolami.

I have a new paper, Establishment’s Political Priority to Free Exercise, forthcoming in the Notre Dame Law Review. Here is the abstract:

American law is beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls “the establishment”—has now, and has always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment’s civil religion—the set of transcendent, church-state propositions that supports the political regime’s legitimacy and authority—has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption’s contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty first. Though today’s most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.