Fallon on Justice Breyer’s Van Orden Concurrence

The latest issue of the Harvard Law Review contains an extensive appreciation of a selection of Justice Breyer’s opinions. I thought to note one essay as particularly well done: Professor Richard Fallon’s discussion of Justice Breyer’s decisive concurrence in Van Orden v. Perry–one of two companion Ten Commandments decisions issued by the Court in 2005. In that concurrence, Justice Breyer decided for a variety of reasons that, he said, defied codification by test or iron rule, that the monument that had stood for many years on the grounds of the Texas state Capitol did not violate the Establishment Clause. Here is Professor Fallon (footnotes omitted):

Justice Breyer’s third ground for distinguishing prior cases, and especially McCreary County, seems to me to cut to the heart of the dilemma that the Supreme Court confronted. Even if the Texas monument’s long history did not dilute its religious message, that history served as a reminder that the Establishment Clause — read against the background of history — cannot, as Justice Breyer put it, “compel the government to purge from the public sphere all that in any way partakes of the religious.” From the beginning, religion has been woven in various ways into American public life. Recognition of this heritage does not, of course, point directly to the correct ruling in Van Orden. It does, however, help to identify the tension that Van Orden required the Court to resolve, or at least manage. Although the Supreme Court has frequently articulated a demand that the government must be neutral in matters of religion, neither that demand, nor what Justice Breyer referred to as the “Court’s other tests,” can “readily explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.”

Without purporting to offer a comprehensive resolution to the tension that the Court’s cases exhibit, Justice Breyer’s Van Orden concurrence suggests a narrow prescription that embodies pragmatic good sense. Although modern governments may not initiate novel forms of support for religious institutions and beliefs, the Establishment Clause should not be read to mandate the chiseling out — which in some cases might be quite literal — of all religious symbols and practices that have long formed part of the architecture of American public life, American public buildings, and American public monuments. To read the Clause so stringently would provoke anger at and resentment of the Supreme Court’s perceived hostility to religion far disproportionate to any good that this approach would achieve….

There is more, and it’s well-worth reading. I, too, admire Justice Breyer’s Van Orden concurrence, but while my reasons are similar to Professor Fallon’s, they are not identical. Perhaps the primary point of divergence in our perspectives is that my defense of historical settlements and practices as a guide to interpreting the meaning of the religion clauses does not depend either on judges’ pragmatic calculations about the comparative social divisiveness of ruling this way or that, or on an overarching or master commitment to religious neutrality, but instead on the intrinsic worth of long-standing historical settlements and customs (doctrinal and social) as a method of conciliating the conflicts that attend these controversies:

The past lies in us and is constitutive of who we are, and though history may be epistemically uncertain, logical certitude is hardly the point of a theory of religious liberty. This point serves as the connection to social history. If the doctrinal negotiations of the past are worthy, though imperfect, counselors for the predicaments of the present–if they are that which we know, and their memory is that which we have–then the objects of those negotiations deserve our attention as well. Political communities are not a-temporal or static associations. They are trans-generational enterprises that depend on the transmission of political and social histories….

The past, in sum, is a beacon. It is a consolation, sometimes effective, other times not, against the ravages of conflict, incommensurability, sacrifice, and tragic loss.

The Tragedy of Religious Freedom 123, 144.

White Reviews The Tragedy of Religious Freedom

very generous review of the book in Commentary Magazine by Adam White. With the exception of the kindly words about Justice Holmes, I don’t disagree with anything in it!

And for something rather different (and speaking of Holmes), here’s a column from Reason (whose tagline is “Free Minds and Free Markets”) about tradition whose conclusion is that “We treasure the customs and practices passed down from our ancestors. And we change them anytime we want.” Judge Posner is quoted as saying, “How can tradition be a reason for anything?”

Lester Reviews The Tragedy of Religious Freedom

The Review of Politics has published a thoughtful review by Emile Lester (political science, University of Mary Washington) of The Tragedy of Religious Freedom. The review is unfortunately behind a paywall, but here’s a portion of it:

The crucial contribution of Marc O. DeGirolami’s The Tragedy of Religious Freedom to both this literature [the literature of tragic conflict] and to legal theory is to explain the tragic approach’s special relevance to religious freedom disputes. DeGirolami’s treatment is deeply humane and wears its considerable erudition lightly and elegantly. Where much legal theory soars into abstraction, DeGirolami’s examples are grounded in wordily insight and empathy. This is fitting as DeGirolami targets reductive, formulaic approaches. These “comic monist” approaches wield master values such as equal liberty or neutrality as silver bullets promising to vanquish opposing concerns and slay the confusion that many religious liberty disputes appear to involve. DeGirolami, by contrast, practices a commendable humility. Religious liberty cases resemble forests teeming with rich, heterogeneous, and organic elements. DeGirolami would not tame this wilderness artificially by transforming it into a neatly manicured garden. His book offers thoughtful suggestions for how to resolve prominent cases, but acknowledges that others may weigh these cases’ complex factors differently to arrive at alternative conclusions.

Professor Lester goes on in the review to offer some interesting criticisms of the book, but I will let readers go and find those on their own.

Calo Reviews “The Tragedy of Religious Freedom”

Zachary Calo has posted a very generous review of The Tragedy of Religious Freedom. Zak’s penetrating criticisms of the book are well worth reading and thinking over. In particular, the interaction of theology and law is a theme that he himself has been developing over the years in superb writing. And I am coming to agree that it would have done the book some good to explore those issues more explicitly. But at any rate I am grateful to Zak for pressing these points in such a characteristically thoughtful and well-crafted way. Here is a bit from the review:

If the book does not fully diagnose the problem, it is also arguable that the logic animating the method of tragedy and history does not fully respond to the present situation. In particular, it might be that a full response needs illumina- tion from theology. Such an impulse seems at time present in the book. There are echoes of transcendence in DeGirolami’s account of tragedy and history, but the book contains unexploited resources for drawing a theological imaginary more fully into the jurisprudential task.

His account of tragedy…rests on the insight that we inhabit a moral universe in which it is not possible to fully instantiate moral goods. Yet in so proposing, DeGirolami is not simply commenting on the quandaries of practi- cal ethics, but describing what it means to act responsibly, to judge rightly and prudently, in a world defined by such limits. A jurisprudence grounded not in abstract principle, but in the lived experience of the world, cannot but confront the need to make tragic choices. “In law,” DeGirolami writes, “it is necessary that one side win and the other lose, yet the inevitability of loss does not preclude choice.” Law, DeGirolami adds, might even be “centrally about the sacrifices entailed by choice making” (p. 99). In encountering such language, one thinks of Augustine’s judge in Book 19 of City of God. Confronted by the “darkness” of making tragic choices, the judge yearns to escape the misery of the office. Yet, impelled by duty, the judge submits to unhappiness, executes the violent decisions of law, and cries out to God with the Psalmist “From my necessities deliver Thou me.” Tragedy finds a paradoxical if limited coherence only within this divine economy. Though DeGirolami never frames his account of tragedy on such express theological turns, an Augustinian impulse never seems far from the surface of his account.

The Tragedy of Religious Freedom at Stanford Law School

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.

Video of Event for CLR & “The Tragedy of Religious Freedom”

The good IT people at St. John’s were  kind enough to create video of this event on September 25. Take a look.

“After” Religious Freedom?: On the Relationship Between the Academic Study of Religion and Law

I am greatly looking forward to participating in a conference next month called, “The Politics of Religious Freedom,” and hosted by four scholars who have been at the forefront of drawing connections between the academic study of religion (or religious studies) and law–Peter Danchin, Elizabeth Shakman Hurd, Saba Mahmood, and Winnifred Fallers Sullivan.

The title of my panel is “Religion and Politics After Religious Freedom.” With the organizers’ permission, I am posting some comments that I wrote up in response to that subject. My sense is that while there may be some issues specific to the particular interdisciplinary relationship of law and the academic study of religion, at least some of the points I make may apply more broadly to the question of law’s distinctiveness as both a practical and an academic discipline. I welcome your thoughts.

My work considers the religion clauses of the First Amendment to the United States Constitution and the body of federal and state laws protecting religious freedom in the United States. One theme in my work involves doubt about the law’s capacity to protect everything worth protecting about religion and religious practice. Here the law is limited and imperfect—both because of the limits of human reason and because of the inevitable conflicts of human interests and aspirations. The law’s limits come sharply into focus for what I have called “comic” theories of religious freedom—theories that reduce religious freedom under the Constitution to one or a small set of values (most commonly equality, neutrality, and the separation of church and state). None of these comic theories includes a sufficient accounting of the costs (including the costs to religious freedom) of such a reduction. These are some of the ideas explored in my book, The Tragedy of Religious Freedom.

The topic of our panel is “Religion and Politics after Religious Freedom,” and there are several ways in which my views are sympathetic, and might even converge, with the project of exploring what might come “after” certain conceptions of religious freedom. By reducing the reasons to protect religious freedom under the Constitution to single values such as equality or neutrality, some comic conceptions of it flatten legal disputes in ways that fundamentally misconstrue the true nature of the conflicts within them. Since what goes under the label of religion is culturally contingent, multifarious, and multifunctional—ideological, personal, political, institutional, communal, a phenomenon of cultural identity and at the same time a source of trans-temporal truth—one ought to expect the same variety, conflict, and incommensurability among and within the conceptions of religious liberty cherished by particular communities and enlisted to protect religion under the Constitution.

It may be that legal conceptions of religious liberty not only are insufficiently capacious to accommodate the welter of reasons to protect religious freedom (this would not be a failing unique to this area of law) but are also so grossly inadequate as to demand some radical alternative. We would, in that case, be well-advised to begin thinking about what should come “after” laws and theories that are irredeemably maladapted to the purpose. But before reaching this conclusion, we ought at least to move away from comic accounts of religious liberty and begin to hear the music of religious freedom in a more tragic key—in a way that embraces a plurality of values and that necessarily involves sacrificing ends about which we care deeply.

In other ways, however, my views are in at least some tension with the project’s ambitions to get past, or over, or somehow beyond religious freedom. I suspect that this skepticism about getting beyond religious freedom may relate to broader differences of interest, focus, and purpose between the disciplines of law and the academic study of religion (ASR).[1] To indulge in an overgeneralization (though one that, I hope, captures something true): ASR scholars are interested in dissolving religion; legal scholars are interested in managing it. There are several reasons that the pungent and interesting critique of religion and religious freedom that has developed in ASR scholarship has been relatively slow to affect law and legal scholarship.[2]

Continue reading

Law and Politics Review of The Tragedy of Religious Freedom

One more TRF item this morning–a review in the Law and Politics Book Review by political scientist Jesse Merriam. Here’s the conclusion, which both gives a sense of Professor Merriam’s (important) criticisms of the book and contains a little nice stuff too:

If DeGirolami truly is going to provide a middle-ground theory, one in which both theory and conflict can co-exist, we need to know more precisely how history and precedent can guide us. The reader will likely find that DeGirolami does not satisfy this standard. Nevertheless, DeGirolami does provide an important service in probing and pushing us closer to this understanding. And something that must be emphasized here is that he performs this service with a clarity, elegance, and intellectual depth surpassing almost every work in this field. TRAGEDY OF RELIGIOUS FREEDOM is an excellent starting point for a discussion of how to arbitrate the principled conflict underlying church-state adjudication, and in starting this discussion DeGirolami does an exquisite job of defending his approach. For these reasons, it is not only an important but also an immensely enjoyable book to read.

Liberty Fund Podcast on The Tragedy of Religious Freedom

I’m grateful to Richard Reinsch of the excellent Law and Liberty blog (a project of The Liberty Fund) for discussing The Tragedy of Religious Freedom with me. If you are not familiar with the resources available at the Liberty Fund, you should check them out. I use their extensive on-line library all the time and they have many interesting essays, book reviews, and posts.

Event on The Tragedy of Religious Freedom in NYC

For those of our readers in striking range of Manhattan, I hope you might consider joining me on the evening of September 25 at the Harvard Club of New York City (27 W. 44th Street) for a discussion of The Tragedy of Religious Freedom. The event begins at 8:00 pm. My friend and colleague, Mark Movsesian, will be the master of ceremonies.

Please stop by and say hello.

%d bloggers like this: