“Establishment as Tradition”

I have posted a new essay, Establishment as Tradition, forthcoming in the Yale Law Journal Forum. It brings together two things I have been thinking about only separately to date: what binds a political community, and what fosters mutual trust and forbearance within it, in its “establishments,” apart from whatever “establishments of religion” may be forbidden in our polity; and traditionalism’s civic character-forming qualities. Comments from interested readers are welcome, as the piece is still a draft. Here is the abstract:

Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this area? Second, is traditionalism more a mood or disposition than a theory, more a matter of the heart than of the head?

On the first matter, traditionalism did not materialize out of thin air in the 2021 term, and it has had unusual power in the interpretation of the Establishment Clause for decades. The question is why, and answering it has implications for constitutional theory more generally. For if some domains of constitutional law are more amenable than others to traditionalist interpretation, the same may be true of other theories. The answer for the Establishment Clause is that establishments are made up of politically foundational traditions. Political establishments are constituted by the concrete, authoritative, and enduring practices and institutions that make up the essential settlements of a polity. To interpret the phrase, “Congress shall make no law respecting an establishment of religion,” is immediately to be directed by the text not to an idea or an abstraction, but to something solid, authoritative, and lasting—“an establishment.” This is a reading supported by the other uses of “establishment” and its cognates in the Constitution. “An establishment of religion,” therefore, is a political practice that sits outside the limits of the constitutionally permissible practices of American political establishment. Unconstitutional establishments of religion depend upon the prior existence of constitutional establishments, and those establishments are often instantiated in a people’s most powerful political traditions. More than certain other domains of constitutional law, the text of the Establishment Clause is inherently traditionalist because its meaning takes shape against a network of concrete, authoritative, and enduring institutional, political practices. And the practices of establishment are essential to fostering the civic trust that is necessary for any polity’s survival. Without them, the political community fractures. In time, it dies.

As for the second question, some critics have argued that traditionalism is not a full-fledged theory so much as a mood or disposition, and that traditions are too manipulable and insubstantial to form the raw material for a theory of constitutional meaning or constitutional law. The question matters because it concerns whether traditionalism is an independent constitutional theory in its own right or instead at most a feature of others, dependent on their methods and justifications. I will argue that traditionalism is as much a constitutional theory as any of its rivals, though that claim will depend on just what it means to count as a theory. It is, in fact, its application in Establishment Clause cases that most clearly demonstrates its comparative systematicity, generality, and predictability of application, three critical elements for qualifying as a constitutional theory. Traditionalism is, to be sure, not a decisional algorithm, but neither is any attractive constitutional theory; it acknowledges and even welcomes reasonable disagreement within shared premises, as do other plausible theories. Still, the critics are in a sense correct: traditionalism has a characterological or dispositional component that other approaches may lack and this, too, is illustrated in its application to the Establishment Clause. Its character, and the kind of disposition it develops in interpreters subscribing to it, is preservative and custodial. That is not a flaw but a distinguishing virtue. It makes traditionalism preferable to other interpretive possibilities because it makes traditionalism more than just an interpretive theory, reflecting and shaping character even as it provides a coherent framework for adjudicating constitutional cases.

Newman on the Development of Doctrine

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.

Around the Web

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

  • In Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama, the Eleventh Circuit U.S. partly reversed summary judgments entered in favor of the city of Mobile after Mobile denied zoning approval for a Buddhist organization to use a house in a residential district for religious purposes. The court found that neither party was entitled to summary judgment under RLUIPA; the district court correctly dismissed plaintiff’s Free Exercise claim because the zoning approval process is neutral and generally applicable; and the Buddhist organization was entitled to an injunction under the Alabama Religious Freedom Amendment to the state constitution.
  • A federal district court in South Carolina rejected two Establishment Clause challenges regarding waivers from federal anti-discrimination requirements that were granted to faith-based child placement agencies in Rogers v. U.S. Department of Health & Human Services and Madonna v. U.S. Department of Health & Human Services. The plaintiffs in those cases, a same-sex couple and a woman who did not share the foster agency’s evangelical beliefs, applied to be foster parents, but were denied because the child placement agencies worked only with clients who shared their religious beliefs. 
  • in Johnson v. Cody-Kilgore Unified School District, a federal district court in Nebraska entered a consent decree in a case between Native American parents, who practice the Lakota religion, and a school district, after the student’s hair was cut as part of a lice check. The consent decree stated that the school district will not cut any student’s hair for any reason without prior consent from the parent or guardian.
  • In Tosone v. Way, plaintiff, who wishes to run for public office, filed suit in federal district court New Jersey alleging that he is unable as a matter of conscience to sign an oath that all candidates are required to sign. The oath ends with “so help me God,” which plaintiff argues violates the Free Speech, Free Exercise and Establishment Clauses.
  • The Colorado Supreme Court agreed to hear the case of Masterpiece Cakeshop v. Scardina after the Colorado Court of Appeals decided that Jack Phillips, the owner of Masterpiece Cakeshop, would have to create cakes even though he did not believe with the message portrayed by the cakes. After the United States Supreme Court announced it would hear Phillips’ first case, in 2018, an activist lawyer called Phillips and requested that he make two cakes: one depicting Satan smoking marijuana and another celebrating a gender transition, and after Phillips refused, the lawyer filed the current suit.
  • The EEOC announced that it filed a Title VII suit against the restaurant chain Chipotle, arguing that a manager at a Kansas location harassed a teenage employee for wearing a hijab. The EEOC further alleges that although the teen continuously complained, Chipotle failure to take action, which led to the manager “forcibly removing part of the teen’s hijab.”

Finding Gold in the Dark

Had John Aroutiounian lived, he would have been a great political essayist. A graduate of Yale, where he was the speaker of the Yale Political Union (as a member of the Federalist Party), he was a student at Columbia Law School when he died of an aggressive cancer in 2019. The Abigail Adams Institute and Cluny Media have now published a posthumous collection of his writings, Finding Gold in the Dark: Reflections on Modern America, Virtue, and Faith, which display remarkable wit, insight, and eloquence, especially for so young a person. Worth reading. Here is the publisher’s description:

“A true citizen must always consider how he shall make the most of the existing materials of his country–each tradition is a potential treasure and the past is filled with gifts.”

These are not the words of some eminent statesman with the wisdom of years at his disposal; nay, they are the words of a young man but twenty-one years of age, given to a gathering at Yale University. For John Aroutiounian, fidelity to truth, elegance in style, and brilliance in wit and humor went hand in hand, as this collection of his writings so aptly shows. A prolific essayist, John wrote scores of pieces over the course of his life, engaging on matters of faith and culture, national identity and political discourse, societal disparity and religious persuasions—always, in sundry fashion, in light of the Armenian Orthodox and Roman Catholic traditions. Finding Gold in the Dark: Reflections on Modern America, Virtue, and Faith is a testament to this fact: the reflections of a conscientious, principled gentleman on the realities and aspirations of his time.

Legal Spirits 053: Tom Berg on Religious Liberty in a Polarized Age

A protester calling for justice for Elijah McClain clashes with a member of the Proud Boys in Denver, Colorado, U.S., November 21, 2020. REUTERS/Kevin Mohatt

Welcome back! In our first Legal Spirits episode of the academic year, we interview our friend, law professor Tom Berg (University of St. Thomas) about his new book, Religious Liberty in a Polarized Age. We explore how fights about religious liberty both reflect and contribute to the deep social division in the US today–but also how a commitment to religious liberty might help ease that division. Listen in!

Deseret News piece on the case of the missing law and religion cases

I’m quoted in this piece by Kelsey Dallas of the Deseret News (whom we have interviewed at the Forum before) on the unusual absence of law and religion cases in this year’s slate of Supreme Court cases. Of course, some might still be added, as Professor Mark Rienzi suggests in the article.

Around the Web

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

  • The 4th Circuit heard oral argument in Billard v. Charlotte Catholic High School to determine whether a Catholic high school violated Title VII by firing a drama teacher for entering a same-sex marriage. While the district court sided with the teacher, during the appeal, judges inquired about the ministerial exception doctrine, even though the school had not raised it as a defense.
  • In Gardner-Alfred v. Federal Reserve Bank of New York, a New York federal district court dismissed claims by two FRB employees who were denied religious exemptions from the bank’s COVID vaccine mandate. The court concluded neither employee showed objections based on sincere religious beliefs. The court noted one employee’s ties to the Temple of Healing Spirit seemed only to seek a vaccination exemption and another’s actions and associations were inconsistent with her claimed religious views.
  • In Huck v. United States, a Utah federal court dismissed challenges to Congress’ 2019 designation of public lands in Utah as wilderness areas, resulting in stricter usage rules like motor vehicle bans. Plaintiffs claimed the designation favored Earth-religions and their views on the ‘sacredness’ of lands, violating the Establishment Clause. The court emphasized historical precedent supporting federal authority over land designations and did not find evidence of religious coercion or bias against specific groups.
  • In Kloosterman v. Metropolitan Hospital, a Michigan federal district court declined to dismiss a physician assistant’s religious discrimination claims against a hospital that fired her for not referring gender transitioning patients based on religious beliefs. The plaintiff, citing Christian beliefs, argued that she was against “eras[ing] or alter[ing] one’s sex.” The court found she plausibly argued that her termination was due to religious beliefs but dismissed her free speech claim.
  • Suit was filed in Rooks v. Peoria Unified School District against the Arizona school board to defend a plaintiff’s use of Scripture during Board meeting comments. Legal counsel to the Board deemed the practice a violation of the Establishment Clause.
  • Israel’s Supreme Court ordered the government to clarify its inaction against Jerusalem’s Sephardi Chief Rabbi Shlomo Amar over derogatory remarks about Reform Judaism, the LGBTQ community, and the Women of the Wall Movement. Amar attributed earthquakes to the LGBTQ community and labeled Reform Jews as “evil people.” The petitioners claim they’ve sought government action 16 times in four years without response.

On Human Rights Hypocrisies

In a new podcast from Parallax Views, I discuss the situation in Karabakh right now. Not for the first time, great power rivalries and human rights hypocrisy have led to the destruction of a vulnerable religious minority–this time, Armenian Christians. The host, J.G. Michaels, and I spend a lot of time on Western hypocrisy, in particular, and how Mideast Christians fail to gain much traction in Western politics. Mideast Christians are too Mideast for the Right and too Christian for the Left. Listen in: https://www.podbean.com/ew/pb-vdntv-14ba395

Lugato on Tradition in Customary International Law

It’s not a law-and-religion piece, exactly, but I’d like to draw attention to a fantastic essay by our Tradition Project partner, Professor Monica Lugato of LUMSA, on the role of tradition in customary international law. This is a complicated subject, and Monica handles it masterfully. I highly recommend it. The essay appears in a new collection, Human Society and International Law: Reflections on the Present and Future of International Law, published last summer by Wolters Kluwer and edited by Carlo Focarelli at Roma Tre. Here’s the publisher’s description:

Where is international law headed for? Should it rather head elsewhere, and why? These are the questions that the ten contributors to this first Special Volume in the Series Convivenza umana e diritto internazionale – Human Society and International Law have been asked to address, each one within their main area of expertise. The ten topics elected by the authors – all members of the Editorial Board of the new Series – make the three parts of this Volume, respectively on the making of international law (with chapters on the sources of international law; the principle of acquiescence; the codification of the right to development; and the legal status and transformative potential of the SDGs); the implementation of international law (with chapters on international custom and the traditionality of international law; the localising of international law; and the constitutional im- port of the SDGs); and the analysis of international law (with chapters on populism and the integrity of international law; the past, present and future of international law’s teaching; and the demands placed on legal analysis by the present climate crisis). As the questions posed to the contributors and the Volume’s subtitle suggest, this work was designed to encourage a reflection, by prominent scholars, on the dynamics of international law across a sample of key topics, mindful of the legal framework as a whole, and its trajectories over time. The underlying assumption – and wish – is that the Volume’s attempt to encourage an overall vision of the discipline, its most recent trends, and its theoretical framework (including of change) will inspire new theses and book proposals for the Series.

Ethnic Cleansing and the Rule of Law

In COMPACT Magazine today, I write about the ethnic cleansing of Armenian Christians now underway in Karabakh. Largely, what’s happening is the result of great powers looking the other way. Here’s an excerpt:

In fact, the ethnic cleansing of Karabakh probably serves many interests. For the Russians, it’s a way of pressuring Armenia to overthrow its pro-Western government. For the United States and Europe, it ends an embarrassing moral quandary and allows them to continue to curry favor with Azerbaijan and Turkey. Just as Moscow tries to pull Ankara to its side, Washington wants very much to keep Ankara in the NATO tent.

And for Turkey and Azerbaijan, it’s another victory in a plan to eliminate the Armenian Christian presence in the South Caucasus and create a pan-Turkic empire stretching from Istanbul to Central Asia, a dream that goes back to the time of the First Armenian Genocide a century ago, during which the Ottoman Empire killed up to 1.5 million Armenians in mass deportations. In fact, Baku already claims Armenia proper as “Western Azerbaijan”—a country that has never existed—and both it and Turkey insist on a sovereign corridor across Armenia to link Azerbaijan and Nakhichevan. Erdogan promises to “fulfill the mission of our grandfathers in the Caucasus.” Will the United States stop him? Will Russia?