Next Monday, I will be discussing The Tragedy of Religious Freedom at Stanford Law School’s Center for Constitutional Law, which is headed by the eminent Michael McConnell and directed by Jud Campbell. The format of discussion is a conversation, and I’m confident that we will have a very good and interesting one.
The details: Monday, November 11, 5:30-7:30, Student Law Lounge. Registration instructions may be found here.
Here’s a story about the banning of Halloween festivities in some public school districts in Pennsylvania. Many of the reasons are unremarkable–worries about security and the secreting of weapons under costumes, concerns about taking away from regular classroom instruction.
But at least some of the reasons stem from conceivable First Amendment violations. And these reasons relate directly to the issue of Halloween’s putative offensiveness to Christians. “Right now,” said Professor Charles Haynes, “school officials should be sensitive that for many people witches, ghosts, and demons have religious connotations, however much they may be sanitized in culture.”
The argument appears to track the sort of constitutionalized insult claim that I discussed and criticized in this post. There, I asked the question of who, precisely, could possibly be offended, or confused, by the state’s lighthearted celebration of a silly occasion like Halloween for the sake of schoolchildren. It might seem from this story, and from Professor Haynes’s comments, that, in fact, there are many people who take deep offense at Halloween as a “religious” celebration that is insulting to Christians.
But a close reading of the story reveals that it is not confusion or insult at Halloween per se that is driving at least some such complaints. It’s rather the memory of the government’s perceived marginalization of Christmas on prior occasions–again, ostensibly to adhere to the Supreme Court’s heckler’s veto jurisprudence of offensiveness in this area–that has inflamed a sense of hurt and offense. As Haynes puts it: “If you can’t have Jesus in December, why can we have witches in October?” (emphasis mine) Haynes says that he “understands that claim.” I understand it too but that claim has nothing to do with Halloween itself. That assertion of hurt feelings suggests that it isn’t anything about Halloween or ghosts or dress-up or whatever that is confusing or hurtful for religious reasons. Celebrations of Halloween have been occurring in schools for decades now, and it would be odd to see a sudden “backlash” against Halloween on these grounds.
Rather, it is the perceived marginalization of Christmas by the school district–and the offense and hurt feeling that that has caused–which now bubbles up and finds expression in complaints about Halloween as a “religious” occasion. An occasion that previously was only slightly offensive, or not offensive at all, has become much more offensive in light of the culture of offense that itself is felt to have down-graded holidays like Christmas.
So goes the logic of insult–responsive as it is to tit-for-tat hurts and slights. It would be unfair and probably incorrect to say that the Supreme Court is primarily responsible for cementing a culture of insult in law. But by adopting a jurisprudence of offense in this area, it has set itself up for an untenable downward spiral of legal insult, as more and more occasions, activities, and educational traditions become the object of legal claims of unfairness, inequality, or offensiveness.
Next month, University of Chicago Press will publish Negotiating in Civil 
Conflict: Constitutional Construction and Imperfect Bargaining in Iraq by Haider Ala Hamoudi (University of Pittsburgh School of Law). The publisher’s description follows:
In 2005, Iraq drafted its first constitution and held the country’s first democratic election in more than fifty years. Even under ideal conditions, drafting a constitution can be a prolonged process marked by contentious debate, and conditions in Iraq are far from ideal: Iraq has long been racked by ethnic and sectarian conflict, which intensified following the American invasion and continues today. This severe division, which often erupted into violence, would not seem to bode well for the fate of democracy. So how is it that Iraq was able to surmount its sectarianism to draft a constitution that speaks to the conflicting and largely incompatible ideological view of the Sunnis, Shi’ah, and Kurds?
Haider Ala Hamoudi served in 2009 as an adviser to Iraq’s Constitutional Review Committee, and he argues here that the terms of the Iraqi Constitution are sufficiently capacious to be interpreted in a variety of ways, allowing it to appeal to the country’s three main sects despite their deep disagreements. While some say that this ambiguity avoids the challenging compromises that ultimately must be made if the state is to survive, Hamoudi maintains that to force these compromises on issues of central importance to ethnic and sectarian identity would almost certainly result in the imposition of one group’s views on the others. Drawing on the original negotiating documents, he shows that this feature of the Constitution was not an act of evasion, as is sometimes thought, but a mark of its drafters’ awareness in recognizing the need to permit the groups the time necessary to develop their own methods of working with one another over time.
Elizabeth Corey has a very interesting review of a book by Gene Callahan about the extent to which the ideas of the British political theorist, Michael Oakeshott, are consistent with some of the founding ideas and principles of the American nation–particularly those championed in the Declaration of Independence but also in the US Constitution. Corey describes the book–Oakeshott on Rome and America–as working its way through this question by positing that it is true that, for example, the Constitution displays the sort of rationalism in politics that Oakeshott criticized–averring principles and political arrangements that were to bind future generations. Nevertheless, there are both internal and external limits on the rationalism of the Constitution. The internal limits are structural, providing for a government of limited powers and securing ample space for the sorts of civil association that Oakeshott defended. Here’s the conclusion of Corey’s review, which explains the external limits:
Does our American Founding, despite its aim of limiting and checking the power of those who govern, exhibit an essentially Rationalistic tendency? In other words, are the self-evident principles and universal rights it proclaims really nothing more than a distillation of the inherited English political experience, parading as eternal truths? And even if they were considered eternal truths in 1776 or 1787, are they really so today? Callahan observes that if the political culture does not support such rights and limits, or if presidents, politicians and judges are intent on, to put it gently, reinterpreting them, then there is nothing at all to stop them from doing so.
Callahan observes that a written constitution will inevitably “be read in a way that conforms to the prevailing understanding of how government ought to operate and what powers it ought to possess.” This is not simply because living constitutionalists and progressives of all stripes have managed to gain majorities in important cases. It is because, argues Callahan following Oakeshott, no written constitution can do what it purports to do in terms of providing pointed and substantive barriers to political action, especially when majorities support such action. For such reasons even Originalism is unsupportable. The notion of grounding or stabilizing the meaning of the Constitution by recourse to “original intent” is, he observes, “not just a pipe dream today, but always was such.” In short, the political culture supports the Constitution; not the other way around. We need only look at the contemporary debate about marriage to see that this is true, whether we like it or not.
One final thought. Perhaps, it might be argued, Oakeshott is right in his arguments about political culture. Politics goes on as it will in a democracy so long as a majority is happy with the outcomes. Yet given the current debates over religious liberty, one wonders where we would find ourselves without the “protection,” or at least the threat, of the first Amendment against government overreach. It is one thing to find the provisions of the Constitution and Bill of Rights not totally adequate for the job; it is another thing to be without them altogether. All parties in the debates over enumerated rights at least acknowledge that the Bill of Rights must be taken into account.
Via the very good Josh Blackman, I learn that Hobby Lobby, the corporation that successfully challenged the contraception mandate before the Tenth Circuit, is supporting the government’s petition for certiorari. As Professor Blackman says, “You don’t see this too often.” The formidable Paul Clement to argue for Hobby Lobby.
I’ve been writing about theological and historical perspectives on religious identity, continuity, and division. See here and here and here. But what about the law? The problem of competing claims to what I’ve called the “religious DNA” of a faith tradition typically comes up during battles over church property arising out of divisions and schisms of one sort or another, within congregations or between congregations and larger church bodies. (I’m not going to talk here about the “personnel” issues that have given risen to the “ministerial exception” doctrine
These sorts of conflicts arise frequently in a country such as ours where religious life and ecclesiastical identities have often been in flux, and have always raised fascinating and difficult questions. An important recent example has been the effort to adjudicate the property of several Episcopal parish churches in Virginia whose congregations voted to break away from the Diocese of Virginia, and affiliate with the new “Anglican Church in North America” in reaction to the national Episcopal Church’s policies regarding homosexuality. Nobody, of course, disputes the right of a group of persons to worship as they please and affiliate with whatever religious group they please. The real question, put bluntly, is who gets to keep the church building, the bank accounts, the chalices and crosses and books and all the other material stuff of religious life. This past April, the Virginia Supreme Court ruled largely in favor of the Diocese and the national Episcopal Church and against the breakaway congregations.
The issues raised by these and similar cases are much too involved and messy for one blog post. But here are a few thoughts, connecting the legal questions to the other perspectives I’ve written about in this little series of posts.
Next month, Boydell Press will publish National Prayers: Special Worship since the Reformation: Volume 1: Special Prayers, Fasts and Thanksgivings in the British Isles, 1533-1688, edited by Natalie Mears, Alasdair Raffe, and Stephen Taylor. The publisher’s description follows.
Since the sixteenth century, the governments and established churches of the British Isles have summoned the nation to special acts of public worship during periods of anxiety and crisis, at times of celebration or for annual commemoration and remembrance. These special prayers, special days of worship and anniversary commemorations were national events, reaching into every parish in England and Wales, in Scotland and in Ireland. They had considerable religious, ecclesiastical, political, ideological, moral and social significance, and they produced important texts: proclamations, council orders, addresses and – in England, Wales and Ireland – prayers or complete liturgies which for specified periods supplemented or replaced the services in the Book of Common Prayer. Many of these acts of special worship and most of the texts have escaped historical notice. National Prayers. Special Worship since the Reformation, in three volumes, provides the edited texts, commentaries and source notes for each of the nearly nine hundred occasions of special worship and for each of the annual commemorations. The first volume, Special Prayers, Fasts and Thanksgivings in the British Isles 1533-1688, has an extended Introduction to the three volumes and a consolidated list of all the occasions of special worship. It contains texts and commentaries which reveal the origins of special occasions of national worship during the Reformation in both England and Scotland, the development of fast days and wartime prayers later in the sixteenth century, and what we know about the origins of special national worship in Ireland. It also shows how special worship became a recurrent focus and expression of religion and political contention during the seventeenth century.
This December, the University of Virginia Press will publish Establishing 
Religious Freedom: Jefferson’s Statute in Virginia by Thomas E. Buckley (Loyola Marymount University). The publisher’s description follows.
The significance of the Virginia Statute for Establishing Religious Freedom goes far beyond the borders of the Old Dominion. Its influence ultimately extended to the Supreme Court’s interpretation of the separation of church and state. In his latest book, Thomas Buckley tells the story of the statute, beginning with its background in the struggles of the colonial dissenters against an oppressive Church of England. When the Revolution forced the issue of religious liberty, Thomas Jefferson drafted his statute and James Madison guided its passage through the state legislature. Displacing an established church by instituting religious freedom, the Virginia statute provided the most substantial guarantees of religious liberty of any state in the new nation.
The statute’s implementation, however, proved to be problematic. Faced with a mandate for strict separation of church and state–and in an atmosphere of sweeping evangelical Christianity–Virginians clashed over numerous issues, including the legal ownership of church property, the incorporation of churches and religious groups, Sabbath observance, protection for religious groups, Bible reading in school, and divorce laws. Such debates pitted churches against one another and engaged Virginia’s legal system for a century and a half.
Fascinating history in itself, the effort to implement Jefferson’s statute has even broader significance in its anticipation of the conflict that would occupy the whole country after the Supreme Court nationalized the religion clause of the First Amendment in the 1940s.
The good IT people at St. John’s were kind enough to create video of this event on September 25. Take a look.
My friend Rick Garnett has an extremely sensible post about the legislative prayer case, Town of Greece v. Galloway, which will be heard this term by the Supreme Court. A bit from Rick’s analysis:
[J]udges evaluate, and sometimes disallow, policies that majorities considered, argued about, and embraced. Because, again, majority rule is the usual way we go about political decisionmaking, this evaluation and – especially! – disallowing is a big deal, and it’s important that the work of judicial review be done right. Whether or not it is depends, I suggest, on (at least) three related variables: First, identifying, as correctly as possible, the judicially enforceable meaning of the constitutional text in question; second, the prudent design and development of workable doctrines that courts can use to decide real-world cases; and third, affording the appropriate deference, if any, to those actors whose decisions are being reviewed and who, presumably, decided that those decisions were constitutionally sound . . . .
[T]he Court can aspire to do well with respect to…doctrine and deference. The court of appeals, its opinion states, saw “no test-related substitute for the exercise of legal judgment” and it characterized the case as a “fact-intensive” one “which def[ies] exact legal formulas[.]” In the end, though, it couched its decision in “endorsement test” terms, and reported that “several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials,” supported the conclusion that “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint.” But neither throwing aside doctrines and tests in favor of “legal judgment” nor engaging in unstructured speculation, however “contextual,” regarding imagined reactions, impressions, and beliefs that “can give only limited guidance to municipalities that wish to maintain a legislative prayer practice” is a sensible or appropriately deferential way for a reviewing court to play its role. A relatively clear, historically rooted standard, the tool employed in the Marsh case, works better, and is the more consistent justification for judicial review.
Of course, not all permissible practices are best practices or even good ideas. Even if the court of appeals reached the wrong conclusion, in an unsatisfying way, about what the Constitution allows, its suggestion to towns that they “pause and think carefully before adopting legislative prayer” is sound advice. Although it is true that many of us – and, in many places, most of us – believe that it is both appropriate and right to seek God’s help with the important business of living together and well in political communities, it is also true that ours is a religiously pluralist society that is becoming more so. In such a society, as the American Jesuit scholar, John Courtney Murray, wrote, “[men and women] of all religions and of no religions must live together in conditions of justice, peace, and civic friendship.” The line that separates policies that build up this friendship from those that tear it down is important, even if judicial review is not always the best way to find it.
Rick’s post is part of an on-line symposium at SCOTUSblog discussing various features of the case; the other posts may be found here.
For what it’s worth, I think the most interesting thing about the case does not concern legislative prayer itself, but the fate of the endorsement test, though this is not an issue that the Court would need to reach if it finds itself in a minimalist mood.