Horwitz on “Tie Games” in Law and Religion

As a commentary chapter for a new book based on the Matters of Faith conference held at University of Alabama, Paul Horwitz (University of Alabama School of Law) has posted Law, Religion, and Kissing Your Sister. The abstract follows.

This paper was written as a commentary chapter for a forthcoming book titled “Matters of Faith: Religious Experience and Legal Response” (Austin Sarat, ed.). The book is based on a conference held at the University of Alabama School of Law in October 2011. Five papers were presented at that conference: on the principal issues discussed, the result was a stark 2-2 tie (with the fifth paper, by a historian, valuable in itself but not taking sides on the disputed matters.) Given the normative orientation of legal scholars, the normal course of business would be to say who is right. But this comment instead focuses on a broader but perennial question: the nature of “tie games” in law and legal scholarship in the area of law and religion.

Church-state conflicts, given the contested and incommensurable issues they involve, are particularly prone to end in ties. That fact has recently encouraged some scholars (myself included) to focus more on the “tragic” nature of church-state law, and the moral remainders that are inevitable in this field, than on the “comic” search for a single value or approach that might resolve some of these disputes once and for all. From that perspective, rather than try to “break the tie,” there may be more value in considering why church-state issues are prone to end in ties, and what if anything we ought to do or feel about it. Read more