An Exchange on Claudia Haupt’s “Religion-State Relations in the United States and Germany”

Here is a nice, short, and generally quite positive review by Markus Thiel (Cologne) of Claudia Haupt’s Religion-State US Germany(Columbia) recent book, Religion-State Relations in the United States and Germany: The Quest for Neutrality (CUP 2011).  Professor Haupt has an interesting reply as well just below the review.  The exchange is worthwhile among other reasons on the question of the value of comparative scholarship in this area.  From Professor Thiel’s review:

The reviewer is an avowed skeptic about the scientific benefit of comparative research in constitutional law in general. It oftentimes achieves the sole result that the legal world is colorful and diversified. Therefore, it is more reasonable to compare particular (legal) provisions and institutions and not the legal system on the whole. But even this approach has to keep in mind that a comparison is complicated by diverging legal and social frameworks and circumstances. It is all the more important for comparative constitutional and political research to provide a precise description of the applied scientific methods, the questions of interest, and the objects of research. The author commences her book with a substantial and instructive chapter on her understanding of a comparative approach. Here, the reader notices that the book restricts its view on questions regarding the interpretation and application of legal provisions. This may be due to the fact that it is based on a dissertation in Political Sciences, but especially the relevant articles of the German Grundgesetz should have been the starting point for any analysis of the neutrality principle in Germany. A German reader with a legal background misses the presentation of the relevant constitutional law “dogmatics” to a certain extent.

And from Professor Haupt’s reply:

Comparative constitutional law in particular benefits from a wide-angle view not merely focused on doctrinal questions. Doctrinal rules, the law on the books, may play out much differently in practice. Take, for example, the paradigmatic example in U.S. religion-state relations, the much maligned Lemon test. Technically, as a matter of blackletter law, Lemon still governs; but engagement with religion-state relations that goes beyond examining the current doctrine in the United States quickly uncovers that, first, the test itself is under siege; second, case law suggests that it does not apply in a number of circumstances; and finally, there is a trajectory of development that suggests the U.S. system of religion-state relations is on a different path altogether, one that is more concerned with the meaning of neutrality than the mechanical application of this three prong test. In short, we learn very little about religion-state relations in the United States from looking at the Lemon test. By contrast, studying the larger societal, historical, and political context allows scholars to identify trends that put the doctrine into perspective.

More Complicated

In chapter 6 of The Tragedy of Religious Freedom, I discuss Cass Sunstein’sThe Tragedy of Religious Freedom work on judicial minimalism and focus on a particular variation–Burkean minimalism.  The method that I adopt for resolution of various religious liberty disputes draws on Burkean minimalism in several respects, but also departs from it in significant ways.  My differences with Professor Sunstein are summed up in the aphorism, “Less Burkeanism, More Burke,” and the discussion in that chapter considers the ways in which Sunstein’s views about minimalism–which are pragmatically grounded–differ from my own–which are grounded in the reality of the complexity of political affairs, the conflict of human aspirations, and the irreducibility of human interests to any overarching theory.  The method that I describe and defend is motivated, in part, by these complications.

Notwithstanding my admiration for judicial minimalism–and, indeed, for Simplerminimalism as a general, guiding ethic of political life–I am not the first to suppose that Sunstein’s attachment to it was always less than entirely secure.  It was, as he himself acknowledged, strategic and instrumental.  This is why I am somewhat disappointed, but not very surprised, to see that Sunstein has recently published Simpler: The Future of Government.  Of course, the book is not about the judiciary; it describes Sunstein’s time at the head of OIRA.  Its overall claims seem to rest on the assertion that government has become simpler during the last four years, that it will or ought to become simpler still, and that this is a wonderful thing.  I have not read the book, and will of course defer to Professor Sunstein on the question whether the government has issued fewer regulations as a numerical matter.  Government during the last four years does not seem so very much simpler to me than it was before, but I’m prepared to be persuaded otherwise.  But apart from these descriptive issues, I have the distinct feeling that I will resist in particularly strong terms the normative claim–which seems to be made in the book–that the simplification of government is for the best.  Indeed, it seems to me that a true minimalist would press just the opposite point: we are complex, and we need a government that can account for, and accommodate, that complexity.  We don’t need simpler; we need more complicated.

Studying Conflict Without Solving It: An Agenda

I participated in a terrific conference yesterday organized by the Berkley Center for Religion, Peace, and World Affairs at Georgetown. The master of ceremonies, Tom Farr, did a wonderful job of putting interesting panels together. And our own moderator, Tom Banschoff, put a series of provocative questions to our panel. I learned a lot from my good co-panelists, Cathy Kaveny and Mark Rienzi, and was happy to see and listen to many old friends and meet new ones (I am now on the train home with some spotty internet access, and so will forbear from linking to the various places where you can learn about the conference — at some point, a video will be available for those who need a sleep aid).

Our panel’s overarching subject was conflict between religious liberty and other rights. My initial comments had to do with the importance of conflict — not only its inevitability, but indeed (and more controversially), its positive desirability as a reflection of the reality of our respective and very different backgrounds, traditions, and memories, but also as a reflection of our internal struggles to manage the clash of sundry values as to which we each hold strong allegiances.

But I realized — both throughout the day and during the panel itself — that my approach and that of others may be slightly different, and in a way that maybe it would be helpful to spell out. During the conference, there was sometimes mention, by some of the speakers, about the need to “build bridges” or to reach mutual agreements or to “solve” conflicts with those with whom one disagrees. Provided that compromises are undertaken at the right level of particularity, I think these are all very worthy goals. They are important as a matter of practical getting along. They are important as a political and legal matter. And they are important inasmuch as an irenic state of affairs is generally welcome.

But I do not think that bridge-building is the only activity that needs pursuing. There are other projects too. Because of the depth and complexity of the conflicts at issue in many of the contemporary controversies addressed by the conference — indeed, because of the central importance of conflict — it seems to me that some study of the conflicts themselves is worthwhile — a study which would be undertaken without the self-conscious and more specifically practical aim of “solving” them. The project would be simply to understand them, and if that were accomplished, it’d be a good day’s work. It also might be the case that taking the measure of a conflict can be achieved more effectively and more deeply without an underlying impulse or motivation to reach a state of harmony, and without the conviction that harmony must somehow be possible.

Perhaps it might be useful to offer some concrete examples of the beginnings of an agenda for the study of conflict as applicable to some of the specific controversies swirling about today. The list surely is not and is not intended to be complete. The main point of this post is methodological. It is about what projects are worth pursuing.

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Movsesian on State-Sponsored Religious Displays in the US and Europe

Mark’s new piece is up at the Oxford Journal of Law and Religion, Crosses and Culture: State-Sponsored Religious Displays in the US and Europe.  Comparativists and students of religious liberty will enjoy and learn a lot from the piece.  The abstract follows.

This article compares the recent jurisprudence of the US Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Both tribunals insist that states have a duty of religious ‘neutrality’, but each defines that term differently. For the Supreme Court, neutrality means that government may not proselytize, even indirectly, or appear to favour a particular church; neutrality may even mean that government must not endorse religion generally. For the ECtHR, in contrast, neutrality means only that government must avoid active religious indoctrination; the ECtHR allows government to give ‘preponderant visibility’ to the symbols of traditionally dominant churches. The different conceptions of neutrality reflect institutional and cultural realities. In particular, the differences reflect what sociologists of religion describe as the ‘American’ and ‘European’ religious models.

Because issues of methodology are of special interest to me, here are some of Mark’s reflections on that question — and in particular about the function of comparative scholarship — in the conclusion to the piece (I have omitted the footnotes, which you can chase down in the piece):

My purpose in this article has been comparative and critical: I have attempted to explain different legal regimes in terms of fundamental institutional and cultural commitments. Comparative work, particularly interdisciplinary comparative work, is still a bit new in law and religion scholarship. As Grace Davie recently has written, law and sociology ask different questions and rely on different methods; ‘conversations’ between lawyers and sociologists can therefore be ‘difficult’.  Nonetheless, such conversations are essential.  For law both reflects and influences underlying social conditions. In Mary Ann Glendon’s phrase, ‘law, in addition to all the other things it does, tells stories about the culture that helped to shape it and which it in turn helps to shape: stories about who we are, where we came from, and where we are going’.  The law on state-sponsored religious displays reveals very different understandings about the place of religion in American and European society. This article is an effort to illuminate those understandings and contribute to an emerging path in law and religion scholarship. 

Classic Revisited: Shiffrin, “The First Amendment, Democracy, and Romance”

For some work I am now doing, I recently read a wonderful book by Steven H. Shiffrin (Cornell), The First Amendment, Democracy, and Romance (Harvard UP 1990) and thought it would be a very good choice as a classic revisited.  Though the book focuses primarily on free speech rather than the religion clauses (Steve of course is deeply learned in both and has more recently written about the religion clauses extensively), and while I enjoyed (and agreed with!) much of the book, there is one portion which resonated especially deeply with me.  It is Chapter 4: “The First Amendment and Method.”  And Steve’s “romantic” pluralistic preferences, which shine through in this and later chapters, represent an original, provocative, and deeply appealing approach to constitutional interpretation.  Here’s a bit from Chapter 4 (110-112), in which Steve contrasts “eclecticism” and (what he calls) “Kantianism” in First Amendment methodology:

A first amendment case cannot be resolved without a method to resolve it.  Many commentators insist, however, that the method to resolve first amendment cases has been ad hoc and subjective.  The implication is that an improvement of method could significantly improve not only the decision-making process, but also the quality of decisions produced . . . . By contrast, I maintain that the problem with first amendment decision-making is for the most part not with the method employed but with the values held by decision-makers . . . .

The method employed in first amendment decision-making, however, has importance that transcends its capacity to determine results in individual cases . . . . If the first amendment is to serve as an important cultural symbol, the modes of justification we use to persuade ourselves and others of its value and importance are themselves of special importance.  Our modes of justification themselves exhibit features of our character and appeal to features of our personality . . . .

Indeed, my view is that the commitment to a particular type of method can be a major part of an individual’s intellectual identity.

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