Saturday, June 25, 2011
I am just back from a useful and interesting conference organized by Nelson Tebbe, Paul Horwitz, and RMOJ (that's Rector of Mirror of Justice) Rick Garnett, convened at Northwestern Law School with Andy Koppelman's gracious hospitality. The conference brought together scholars from an extraordinarily broad range of perpspectives, and it was a pleasure for me to see and speak with MOJ family members Steve Shiffrin, Tom Berg, Mike Moreland, and Susan Stabile.
The various projects that people presented were very interesting -- some highlights for me were an Augustinian project in political and legal theory by John Inazu and a paper on freedom of the church (as distinguished from "religious" freedom) by Steve Smith, as well as a panel discussion of the Hosanna-Tabor case by deeply informed and insightful folks, but there were many others. But I was also impressed by the distance of the projects from each other -- distance in perspective, in tone, and most especially in weltanschauung.
That got me wondering about something that might sound a little like navel-gazing, though in my defense it's really more about gazing at other people's navels than my own. What would a political history of law and religion scholarship look like? Would it show consistency with respect to the range of world views espoused by scholars in this area? Or would it show expansion? Or something more complex?
My horse sense is that the political history of law and religion scholarship might track (very) roughly the comparatively recent history of American politics. It would evince, that is, a movement from a state of relative convergence on a set of agreed upon views to a state of increasing splintering and balkanization (or, to put it in more sanguine as well as ambiguous terms, to a state of increasing pluralism) of perspective. Of course I don't mean that the earlier convergence among religion clause scholars tracked or mirrored an earlier political convergence, or that the current, more balkanized situation runs parallel to contemporary American politics.
What I mean is that if one were to survey the state of the field, say, roughly 30-40 years ago, one would probably see something approaching a rough similarity of perspective among many law and religion scholars -- folks who read both the Free Exercise and Establishment Clauses in a 'strong' way. Many of the most important scholars of that generation held that general view, even as there may have been intramural differences among them. Indeed, some of those very same folks were in attendance at our conference. Of course there were dissenters from that general position 30-40 years ago too -- but the point is that there existed such a majority view, and that it was considered, for lack of a better term, mainstream, or eminently reasonable within the academic world -- a mid-20th century academic moderate liberal's view (which is not the same as a non-academic moderate liberal view). Part of the power of the view was that a strong reading of the Establishment Clause gave these scholars a kind of bona fides -- certainly within academic circles -- when arguing for a strong reading of the Free Exercise Clause. If you are against majoritarian religion, the chances might increase in the academy that people will listen to you when you argue in favor of anti-majoritarian religion.
But today, I think it is much more difficult to identify any mainstream or consensus-like position. There are those who like a strong EC and a weak FEC, those who prefer weak readings of both, those who go for a strong FEC and a weak EC, and those who hold to the strong reading of both. But even those who prefer the dual strong reading aren't necessarily coming at the issue from the point de depart of mid-century academic moderate liberalism. Some are coming from traditions of faith; some from radical political perspectives; some from rather specialized policy engagements; some from distinct philosophical traditions, and so on. That variety of background has generated a broadening of normative preferences. And so too, perhaps like the political culture itself, the political culture of law and religion scholarship exhibits a pattern of fragmentation -- it begins to look much more like a European parliamentary arrangement than the American situation at least as it once was.
Whether these developments are good or bad is not a particularly interesting question when framed in those stark terms. Like all developments and changes, there is both gain and loss. But sometime, somewhere down the road, it might be enjoyable and interesting for someone more capable than I to write a piece about the trajectory of law and religion scholarship -- what its political and cultural history looked like at inception, how it appears now, and how it may appear in years to come.