Witte & Nichols, “Religion and the American Constitutional Experiment” (4th ed)

In April, Oxford University Press released the fourth edition of Religion and the American 9780190459420Constitutional Experiment, by John Witte, Jr. (Emory) and Joel Nichols (St. Thomas-Minnesota). The publisher’s description follows:

This accessible introduction tells the American story of religious liberty from its colonial beginnings to the latest Supreme Court cases. The authors provide extensive analysis of the formation of the First Amendment religion clauses and the plausible original intent or understanding of the founders. They describe the enduring principles of American religious freedom–liberty of conscience, free exercise of religion, religious equality, religious pluralism, separation of church and state, and no establishment of religion–as those principles were developed by the founders and applied by the Supreme Court. Successive chapters analyze the two hundred plus Supreme Court Continue reading

Greenawalt, “From the Bottom Up: Selected Essays”

I’m delighted to post this notice for a new book of essays by my old master, Kent From the Bottom UpGreenawalt: From the Bottom Up: Selected Essays. These previously published and newly collected essays span Kent’s writing life and do an excellent job of conveying his immense and broad erudition. They cover topics including the bases of law (public reasons, natural law, religious reasons, and so on); law and objectivity; and several subject specific inquiries (in criminal law, law and religion, and speech law).

As a compendious but complete introduction to Kent’s thought, you cannot do better. I was honored to provide this book blurb:

A crucial book for understanding the mind of one of the great legal scholars of our time. Kent Greenawalt’s core insight, developed over a scholarly life and across several disciplines, is that the law is best understood inductively–not by drawing hard dividing lines between legal concepts and categories but instead by asking careful questions about how the law works itself out in the real world.

Munoz, “Religious Liberty and the American Supreme Court: The Essential Cases and Documents, Updated Edition”

In March, Rowman & Littlefield released “Religious Liberty and the American Supreme Court: The Essential Cases and Documents, Updated Edition” by Vincent Phillip Munoz (University of Notre Dame). The publisher’s description follows:

Throughout American history, legal battles concerning the First Amendment’s protection of religious liberty have been among the most contentious issue of the rights guaranteed by the United States Constitution. Religious Liberty and the American Supreme Court: The Essential Cases and Documents represents the most authoritative and up-to-date overview of the landmark cases that have defined religious freedom in America. Noted religious liberty expert Vincent Philip Munoz (Notre Dame) provides carefully edited excerpts from over fifty of the most important Supreme Court religious liberty cases. In addition, Munoz’s substantive introduction offers an overview on the constitutional history of religious liberty in America. Introductory headnotes to each case provides the constitutional and historical context. Religious Liberty and the American Supreme Court is an indispensable resource for anyone interested matters of religious freedom from the Republic’s earliest days to current debates.

The Roberts Court Has Contracted, Not Expanded, Religious Rights

Linda Greenhouse has a column purporting to reflect on the Roberts Court’s first nine years that doubles as an occasion to offer the hope that Chief Justice Roberts will “moderate” in the next decade–a hope then despaired of at the end of the column.

She also says this:

It has been an eventful nine terms for the court and its chief. Samuel A. Alito Jr., Justice O’Connor’s eventual replacement, is well to her right and has provided Chief Justice Roberts with a reliable if narrow majority for the court’s steady regression on race and its deregulatory hijacking of the First Amendment. Along with ever-expanding accommodation of religious interests, these are the areas in which the Roberts court has made its increasingly predictable mark.

But on the issue of religious interests, Greenhouse is, I believe, mistaken, at least insofar as constitutional law is concerned. As I show in this article, the defining mark of the Roberts Court in the area of religious rights has been contraction, not expansion. One of the very cases cited by Greenhouse herself involving the religion clauses–Town of Greece v. Galloway–is much more plausibly conceived as a contraction of the Establishment Clause, not an expansion. The Court’s exercise of judicial review, the range of views among the Justices about religious rights, and the substance of the Clauses themselves–all of these, contra Greenhouse, have contracted over the last decade.

My Review of Steve Smith’s Rise and Decline of American Religious Freedom

I’ve got a review of Steve’s book over at The University Bookman. A bit from the beginning:

In legal scholarship, as in any literature, style matters as much as content. The subjects authors explore, their manners and patterns of thought, the metaphors and idioms they select, the grace with which they address the audience and carry it along—in sum, the personal qualities that emerge in the telling of the tale—are remembered long after the details of the argument have faded. Over the duration of a scholarly life, a writer constructs a personality. And as the relationship of author and reader matures across the years, the publication of a new piece is the occasion to look not so much for argumentative roundhouse punches that could have been thrown anywhere by anybody, as for an old friend.

This is the way I come to the work of Steven D. Smith, the most penetrating and thoughtful scholar of religious freedom of our generation, and that rare author in American legal academia whom it is a joy to read. His new book, The Rise and Decline of American Religious Freedom, represents a distinctively and recognizably Smith-esque contribution. His authorial method has always been primarily diagnostic: he describes the existing legal and historical landscape, and in so doing brings a particular critical perspective that generally runs more or less against the current. Toward the conclusion of his work, Smith often gestures toward several possible resolutions to the problems he has discussed, but they are rarely more than that: soft speculations, almost afterthoughts, about a few pathways out of the forest. But the heart of a Steve Smith book is in the careful exposition of a problem. He has cultivated this method over the years with consistent, wry panache to great effect—whether the subject is the healthful absence of a single theory of the religion clauses of the First Amendment, or the contemporary obsession with the value of equality, or the unsustainable claims about the “reason” that inheres in constitutional law and scholarship. Always, Smith offers an alternative historical and doctrinal description. Always, he hints suggestively at contrarian possibilities and ends. Always, the leitmotivs are skepticism and decline.

Inazu on the Idea of the Public Forum

John Inazu has posted a very thoughtful and interesting piece, The First Amendment’s Public Forum. The abstract and some rapid reactions to the piece follow:

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society. The resulting mosaic is neither thematic nor tidy, but it is in at least one sense, beautiful: the deductions, like the city park, enact the aspirations of a democratic polity. Organizations and ideas wither or thrive not by government fiat but based on the “values and choices of private givers.”

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a limited public forum. Between these poles lie numerous other governmental arrangements with similar purposes and functions: sidewalks, parking lots, public schools, websites, public libraries, vanity license plates, and student activity funds, to name a few. In each of these cases, private groups and individuals rely on government resources (financial or otherwise) to inculcate and express their ideas and their ways of life. The ideal of the public forum represents one of the most important aspects of a healthy democracy. It signifies a willingness to tolerate dissent, discomfort, and even instability. The distortion of that ideal represents one of the greatest challenges to First Amendment jurisprudence today. That distortion is partially attributable to two important doctrinal developments. The first is increased judicial reliance on purportedly “content-neutral” time, place, and manner restrictions. The second is the relationship between the public forum and the evolving government speech doctrine, under which the government characterizes messages advanced under the auspices of its financial and other resources as distinctively its own and not subject to First Amendment review. This essay suggests that one factor facilitating these developments is a gradual but unmistakable shift in the moorings of the public forum doctrine from the Assembly Clause to the Speech Clause. The public forum is a First Amendment doctrine, not a free speech doctrine. And we will only comprehend its purposes and its possibilities when we rediscover the values underlying the rights of the First Amendment.

This piece continues and amplifies on John’s important work on the freedom of assembly. I have often wondered (and I suspect John may also wonder) whether the increasing muscularity of speech doctrine–verging, in my own view, on what might reasonably called absolutism–has contributed (or is contributing) to the weakening of the other freedoms guaranteed by the First Amendment. One need not hold Robert Bork’s view of the speech clause to suspect that this is happening. One can see the phenomenon with respect to the religion clauses–for example, in the claim that corporations cannot “exercise” religion because corporations cannot “believe” anything, or have no “consciences” (that very claim about corporations was rejected by the Court as to speech itself, though Justice John Paul Stevens as well as most of the rest of the legal academy are still up in arms about it). John’s own relational account of the freedom of assembly emphasizes the value of congregation and consociation–of the act of gathering together for a social purpose–which is rather a distinct good than whatever speech concerns are at issue. One might add that the value of place–of having a place, and perhaps even (and more controversially?) of knowing one’s place–are important First Amendment considerations.

McGinnis & Rappaport, “Originalism and the Good Constitution”

The importance and influence of originalism as a theory of constitutional interpretation cannot be overstated. Originalism demands a response, and it has been uniquely successful in generating responses (whether sanguine or skeptical) from constitutional scholars as well as the broader public. In recent years, originalism has enjoyed renewed prominence in both the courts and the scholarly community. So-called “new originalism” has come on the scene, garnering a few unexpected adherents. And originalism’s influence has certainly increased on the Supreme Court in the last decade. Indeed, it is difficult to imagine an opinion on, for example, the Recess Appointments Clause in the upcoming Noel Canning case that does not discuss originalist methods and reach conclusions consistent with originalist interpretive theory. That prediction could not have been made in previous eras.

The influence of originalist thinking on the interpretation of the Constitution’s religion clauses has been perhaps less powerful than in other areas (Michael McConnell’s work is a notable exception, and there are a few others). In part this is due to complex and difficult disagreements among scholars about the meaning and scope of the Free Exercise Clause (see, for example, the old debate between McConnell and Philip Hamburger, reflected in the dueling opinions by Justices O’Connor and Scalia in City of Boerne v. Flores). In part it is due to the radical expansion of the coverage of the Establishment Clause in Supreme Court caselaw beginning in the 1940s (see Donald Drakeman’s book, among other treatments) well beyond its original meaning. Nevertheless, there is a distinct possibility that originalist analysis will play a prominent role in the interpretation of the Establishment Clause in the upcoming Supreme Court legislative prayer case–at least in some of the opinions.

All of this is just a little background for what looks to be an extremely Originalism and the Good Constitutionimportant new book on originalism by two of the most acute proponents of originalism (specifically, original methods originalism, which the authors usefully compare against the constitutional construction of another new originalist, Larry Solum) writing today: Originalism and the Good Constitution (HUP 2013) by John McGinnis (Northwestern) and Michael Rappaport (University of San Diego). The book is a must-read for anyone interested in constitutional interpretation (even for–especially for–those of us who are not originalists). For some of my own thoughts about originalism in constitutional interpretation, see the second half of this paper. The publisher’s description follows.

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities—both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number.

The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?

A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, which is now the most prominent theory of constitutional interpretation.

Conversations: Marc DeGirolami

This summer, Harvard University Press published The Tragedy of Religious Freedomby our very own Marc DeGirolami (left), CLR’s Associate Director. In the book, Marc argues for a “tragic” understanding of religious freedom, one “that avoids the twin dangers of reliance on reductive and systematic justifications, on the one hand, and thoroughgoing skepticism about the possibility of theorizing, on the other.” This week, Marc answers some questions about his book. Among other things, he discusses the differences between “tragic” and “comic” legal theories; the value of history and tradition in judicial decision-making; and the inevitability of judicial discretion. He also explains why the Court got religious freedom wrong in Employment Division v. Smith and right in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. 

CLR Forum: Marc, explain what you mean by “comic” and “tragic” approaches to law generally. Why do you think religious freedom, in particular, should be addressed from a tragic perspective?

DeGirolami: The terms comic and tragic are ancient and have been used in classical, literary, and philosophical settings. I draw on some of these meanings in the book, but I use comic in the legal context to mean two things: (1) a preference for systematic ordering of the law by reducing legal values either to one or to a small set, in the belief that human society is progressively improved by that reduction; and (2) the marginalization of the loss of other values in the process of accomplishing (1). Tragic approaches to the law resist both of these points. A tragic approach to law says that the reasons we value a practice like religious freedom are plural and cannot be reduced. Each value struggles to avoid absorption and subordination by the others. The clash of values results both from the limits of human reasoning and from the conflict of human interests and aspirations. So in the face of conflict in law, a tragic approach affirms that the comic impulse to reduce legal values, and systematically to marginalize those that are subordinated, will exacerbate conflict and end up deforming, and perhaps eventually destroying, important social practices and institutions.

CLR Forum: You single out Employment Division v. Smith, Justice Scalia’s famous opinion in the peyote case, as an example of the misguided “comic” approach and argue that it should be gradually dismantled. What’s so wrong with Smith? And why not just overrule it? 

DeGirolami: Yes, I am critical of Smith and believe it to be an example of a comic approach. Smith reduced all possible values of free exercise under the Constitution to a single value: formal neutrality. A neutral rule that is applied generally no longer can violate the Free Exercise Clause of the Constitution after Smith, no matter how severely the rule burdens the religious free exercise of an individual or a group and no matter how insubstantial the government’s interest in enforcing the rule on a religious claimant. The Smith decision attempted to accomplish both of the comic points I listed above. It wanted to bring system Continue reading

NYC Council Passes Equal Access Resolution for Churches to School Property

Via Walter Russell Mead, I learn that the New York City Council passed a resolution on Wednesday calling for the granting of equal access to churches and houses of worship to public school property (it calls for new legislation to amend the New York State Education Law in this respect). We have on various occasions discussed the “serpentine path” of litigation in the Bronx Household of Faith case, and it appears from Mead’s report that several Council members who opposed the resolution (as well as schools Chancellor Dennis Walcott) made a public statement citing the concerns of the Board of Education that by granting access, the school might be “appearing to endorse religion.” The Council’s resolution may have been spurred by the events in the Southern District of New York.

I have argued before that it is an intrinsic feature of the endorsement test that it leads to Establishment Clause bloat, in which endorsement is replaced by the “appearance” of endorsement in a kind of infinite regress of subjectivity which enables courts to bloat the Establishment Clause without going to the trouble of ruling that a particular activity actually does violate the Establishment Clause. Here, though, I only want to note that Mead’s view that “the Founders did not intend the First Amendment to deny churches the right to pay money to rent public school properties” is, in my view, correct. The best work on the subject that I know of indicates that as a historical matter, while state use of religious buildings was problematic on Establishment Clause grounds, religious use of public buildings was not. I discuss some of this work in chapter 10 of The Tragedy of Religious Freedom. Of course, depending on one’s views, that is not necessarily conclusive on the question whether the Constitution forbids such use today.

Horwitz, “Freedom of the Church Without Romance”

For those interested in the exploding work on the freedom of the church (and you should all be!), do see Paul Horwitz’s new tour de force draft article, Freedom of the Church Without Romance, a typically graduated and thoughtful piece by a defender of ecclesial liberty.

I haven’t yet read the entire piece, but what I have read is rich and very interesting. I touch on ideas of liberty of the church in my chapter on free exercise applications of the tragic-historic method in The Tragedy of Religious Freedom–in Chapter 9 where I discuss the Hosanna-Tabor case. But because (I think!) my view of freedom of the church is perhaps not quite as potent in certain ways as is Paul’s (it is subject to perhaps greater particularistic assessment by courts and is less committed to the general superstructure of Horwitzian First Amendment institutionalism, even as qualified in this piece), I wonder whether, for me, the suggestion of embracing a “strong non-establishment regime” follows as powerfully as it does for Paul (if one understands a “strong” disestablishmentarian regime in the way that I suspect Paul does). Some of Paul’s questions toward the end of the piece about arguments involving church freedom alongside others concerning equal access of religious entities in the provision of services do not seem to me to give churches “a competitive advantage” that is troubling for Establishment Clause purposes (one can believe this, I think, and also agree with Paul about the importance of the economics of religion quite apart from the issue of its constitutional weight), though I understand the point that Paul is making. At any rate, the piece is well worth a good, long read. The abstract follows.

This Article is part of a symposium issue titled “Freedom of the Church in the Modern Era.” Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court’s decision affirming the “ministerial exception” doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,the idea of “freedom of the church” has taken on new champions–and critics.

This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion.

Both historical and economic analysis of the concept of”freedom of the church” suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions–or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of “freedom of the church” means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion’s status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church’s well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church–the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime.

The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions.

There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.

%d bloggers like this: