Friday, September 18, 2015
Just a note about two items from the Center I direct with my colleague, Mark Movsesian.
First, the indefatigable Gerald Russello, who edits The University Bookman and is a frequent and insightful commenter about all manner of interesting issue (in addition to being a partner at a large law firm in New York), will be blogging with us for the next month. Here's his first post, Scribes and Holidays.
Second, our first event of the season, a conversation with Judge Richard Sullivan (SDNY) about religious freedom and the Supreme Court, will occur on October 27 and will be hosted by our excellent alumna, Mary Kay Vyskocil, at the offices of Simpson, Thacher & Bartlett in New York. Here's an announcement with further details. If you are interested in attending, please let me or Mark know, as space is limited.
Sunday, September 6, 2015
This story reports on the arrival in Washington, D.C. of a new museum, the "Museum of the Bible," whose collection will include "pieces of the Dead Sea Scrolls, a Gilgamesh tablet, Elvis Presley’s Bible and about 850 manuscripts, 12 of which are in Hebrew and come from China’s Jewish population. A third of the material may be considered Judaica, related to Judaism and the Old Testament, including torahs that survived the Spanish inquisition and the Nazis."
Notwithstanding this scattershot miscellany, the story seems determined to find a controversial separationist church-state angle. It reports that the museum is the creature of Hobby Lobby President Steve Green and that its proposed location near the Mall might well overshadow a downtown skyline that is "dominated by monuments to men." Objections to the museum appear to combine the aesthetic, the religious, and the ideological: e.g., "To many in the scholarly community, the museum seems like an oversize piece of evangelical claptrap"; "The museum will be a living, breathing testament to how American evangelicalism can at once claim it is under siege from secularists, the LGBT rights movement, or feminism — yet also boast of acquiring a prime private perch, strategically located at the nation’s epicenter of law and politics.”
But perhaps all of this is too much fuss over a development that secular critics of the museum might
welcome. Artifacts that get their own museums are often on their way out culturally. Museums generally involve subjects and events that are in some way closed affairs--affairs to be studied and reflected on retrospectively. Proust recognized as much when he spoke of the movement to turn French cathedrals into museums in the early 20th century, which he pronounced "the death of the Cathedral." "Once a church is decommissioned it dies, and though as an historical monument it may be protected from scandalous uses, it is no more than a museum."
As for the American religion that needs defending against the assaults of the likes of the museum, that's nearly perfectly summarized in the first paragraph of the story (though the final word "instead" seems out of place):
In Washington, separation of church and state isn’t just a principle of governance, it’s an architectural and geographic rule as well. Pierre L’Enfant envisioned a national church on Eighth Street. A patent office was built on the site instead.
FURTHER NOTE: My colleague, Mark Movsesian, had this comment: "The Museum of Biblical Art, a lovely, small museum in New York, sponsored by the American Bible Society, was forced to close this summer, notwithstanding some excellent exhibits, including one on Donatello. One big problem the museum had, according to Slate, was the “pesky aroma of Christianity,” which apparently put off New York art lovers."
Tuesday, August 25, 2015
The Center for Law and Religion at St. John’s Law School is pleased to announce its third biennial Colloquium in Law and Religion, scheduled for Spring 2016. This seminar invites leading law and religion scholars to make presentations to a small audience of students and faculty.
The following speakers have confirmed:
February 1: Brett G. Scharffs (Brigham Young University School of Law)
February 16: Robin Fretwell Wilson (University of Illinois School of Law)
February 29: Robert P. George (Princeton University)
March 14: Mark Tushnet (Harvard Law School)
April 4: Justice Samuel A. Alito (United States Supreme Court)
April 18: Elizabeth H. Prodromou (Boston University & Tufts University Fletcher School of Diplomacy)
Topics will be announced at a future date.
For more information or if you would like to attend the sessions, please contact the colloquium’s organizers, Marc DeGirolami (email@example.com) and Mark Movsesian (firstname.lastname@example.org). For information about past colloquia, please click here, Spring 2012, and here, Spring 2014 (hosted with Villanova Law School).
Monday, August 17, 2015
I've been reading Tocqueville's L'Ancien Régime et la Révolution, a work that discusses the several causes of the French Revolution and one of whose basic themes is that the legal and political reforms following the Revolution were actually already in place in the late stages of the ancien régime. After the distempers of the Revolution subsided, those same governmental reforms and ways of conducting state business returned.
In fact it was the reforms that hastened on the Revolution. The anger and dissatisfaction of the people became unbearable not because equality was in decline or at its lowest ebb before the Revolution, but because it was rising. The point is about the political psychology of equality, and, allowing for changed circumstances, it isn't applicable only to pre-revolutionary states but can be seen to operate in many contexts. The more people believe themselves to be equal to one another in every respect, the less inequalities of any respect become tolerable. From Chapter XVI ("That the Reign of Louis XVI Was the Most Prosperous Era Of the Old Monarchy, and How That Prosperity Hastened the Revolution"):
Revolutions are not always brought about by a decline from bad to worse. Nations that have endured patiently and almost unconsciously the most overwhelming oppression, often burst into rebellion against the yoke the moment it begins to grow lighter. The regime which is destroyed by a revolution is almost always an improvement over its predecessor, and experience teaches that the most critical moment for bad governments is the one which witnesses their first steps toward reform. A sovereign who seeks to relieve his subjects after long periods of oppression is lost, unless he be a man of great genius. Evils which are patiently endured when they seem inevitable become intolerable when once the idea of escape from them is suggested. The very redress of grievances throws new light on those which are left untouched, and throws fresh poignancy to their smart: if the pain be less, the patient’s sensibility is greater. Never had the feudal system seemed so hateful to the French as at the moment of its proximate destruction….
No one in 1780 had any idea that France was on the decline; on the contrary, there seemed to be no bounds to its progress. It was then that the theory of the continual and indefinite perfectibility of man took its rise. Twenty years before, nothing was hoped from the future; in 1780, nothing was feared. Imagination anticipated a coming era of unheard of felicity, diverted attention from present blessings, and concentrated it upon novelties.
Sunday, August 9, 2015
Here's an insightful post by Paul Horwitz on the Garnett, Inazu, McConnell essay. Paul introduces the post with a discussion about contemporary attitudes toward government's "insist[ence] that private organizations comply with its own sense of the good," and he claims that though many people continue to believe that such insistence is illegitimate, "the momentum" within the elite classes (or call them how you will) "is on the other side." I am always pleased when Paul shares at least some of my sensibilities.
One more thought connected to Paul's comment on these interesting matters. Tax exemption for private nonprofit organizations made a certain amount of sense when two conditions obtained: (1) the size of government, and the scope of its role in American social life, were a good deal smaller than they are today, thereby both necessitating and making space for the involvement of private nonprofit institutions for the support of civil society; and (2) the view that these private institutions could and should play an independent role in shaping civil society in accordance with their own senses of the political and moral good, senses that might diverge in important respects from the state's.
The conditions are mutually reinforcing and mutually dependent. As government becomes larger, both the need and the space for private institutions shrinks as does the perception that private institutions might actually have something of value to say in the way civic formation that is very different from what the state says. The "need" question is complex, because the breakdown of condition #1 would not necessarily mean that we would see fewer private institutions performing the sort of work that they had performed in the past. Indeed, the increase in the size and scope of the government's role might itself necessitate greater numbers of private institutions to help it fulfill its enlarged offices. But we should expect to see a sharp decline in private institutions engaged in civic formation whose values differed sharply from the government's. Whatever public/private arrangements endured after the fall of condition #1 could not continue to operate under the premises of condition #2. One might say that this is to be expected--indeed, it might be said to validate a hoary separationist rallying cry: if private institutions want to be in the business of performing civic functions, they ought to expect pressure to conform to the government's preferred views of the civic, political, and moral good. (A footnote: I’m always struck by how decidedly Protestant the theology supporting these kinds of separationist arguments seems.) All true, though one could offer in return that such increased pressure is not inevitable but the product of a historical contingency: the breakdown of the two conditions above.
Wednesday, August 5, 2015
Those familiar with some of the schools of constitutional interpretation will know what is commonly called the intratextualist or structuralist method of divining meaning. The idea is to understand the meaning of a word or phrase by searching out and comparing like words or phrases in the same document in order to arrive at a unified meaning. There is a kind of horse-sense fundamental principle sitting somewhere beneath the method: words used at different points in the same document ought to mean the same thing throughout the document, and variations on word usage ought to be understood as signifying difference of meaning. The meaning of the words in the document should render the document a coherent whole. The several usages of “necessary” in the Constitution, for example, are useful in teaching the virtues and vices of intratextualism.
But intratextualism is not just for constitutions. It is a more general approach to extracting meaning from text. Here’s an interesting passage from Robert Louis Wilken’s The First Thousand Years: A Global History of Christianity that describes early developments in Christian interpretation of the Old Testament. This is from the chapter on the great Origen of Alexandria (p.62):
Origen was to spend the rest of his life in Caesarea, and his most mature works were written there, including many of his biblical commentaries. He was the first Christian to write scholarly commentaries on books of the Old Testament, such as Genesis and Psalms, as well as on the New Testament, including the Gospel of John and the Epistles of Paul. Two features stand out in his commentaries: a deep respect, even reverence, for the words of the text, and the conviction that a spiritual meaning could be drawn from every passage of the Bible.
Consider his interpretation of the following passage from the book of Deuteronomy, for example: “If you walk in my statutes and observe my commandments and do them, then I will give you your rains in their season, and the land shall yield its increase, and the trees of the field shall yield their fruit.” (Deuteronomy 11:13-17). Origen begins by putting questions to the text. If “rain” is given as a reward for those who keep the commandments, how does one explain that this same rain is given to those who do not keep the commandments, and “the whole world profits from the common rains given by God”? This leads him to propose that the term “rain” can have another sense than water from the heavens, because in this passage it seems to refer to something that is given only to those who walk in God’s statutes and observe the divine law. It signifies something given “only to the saints.”
With the puzzling use of the term “rain” in the passage as a starting point, Origen proceeds to examine the term “rain” elsewhere in the Scriptures and discovers that it is sometimes used in a metaphorical sense. Moses, for example, said, “May my teaching drop as the rain, my speech distill as the dew” (Deuteronomy 32:1-2). In this passage rain is a metaphor for Moses’s words, and hence of the word of God. That is to say, in the Scriptures “rain” can have another meaning than the plain sense.
Tuesday, August 4, 2015
A very interesting comment authored jointly by Rick, John Inazu, and Michael McConnell on the recently introduced First Amendment Defense Act [UPDATE: I see Tom got there first below, so I've stricken the excerpted bit in this post.]
One thought that has occurred to me on the issue of "tax exemption" of nonprofit institutions is that the entire discussion seems askew. It generally begins from the premise that the government can and should be able to tax anyone and anything that it pleases. The tax base is limitless. Amenability to taxation, however, ought not to be the default posture, as if the government simply gets to decide at its pleasure and election whom and what it wishes to tax. Income taxation only follows from the fact of income generation, and though nonprofits generate income they do not distribute it to individuals for private use but spend it in ways that promote public functions and purposes. Nonprofit actors are not appropriate objects of this kind of taxation at all. Consider, for example, the way in which the Connecticut Supreme Court in an 1899 decision discussed Yale University's tax exempt status (not an income tax decision, of course):
The non-taxation of public buildings is not the exception but the rule. The corporations, whether municipal or private, which own and are by law charged with the maintenance of such untaxed buildings, are not the recipients of special privileges, in any sense obnoxious to the law. The seats of government, State or municipal, highways, parks, churches, public school-houses, colleges, have never been within the range of taxation; they cannot be exceptions from a rule in which they were never included.
Yale University v. Town of New Haven, 42 A. 87, 91 (1899). These institutions are, as the authors of the piece put it, actors within "civil society" that should in general not be touched by the government's taxing power. Moreover, a government decision not to tax is emphatically not the same as a government decision to grant money or subsidize. We use the language of "exemption" when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government's power to tax.
[Further update: I've amended some things in the post for clarity.]
Monday, July 27, 2015
Congratulations to Tom and St. Thomas's religious liberty clinic on the decision from North Carolina. Tom writes below that "the plaintiffs' problem on the religion question was that there was no North Carolina anti-establishment provision restricting government support of religious schools ("sectarian schools," as other states call them)."
I have a short essay discussing, in part, a recent case from a state with just such a clause--Colorado--whose supreme court rejected a voucher program on the ground that any aid--direct or indirect--would violate the clause. Just a small quibble: I do not think that such clauses are rightly characterized as "anti-establishment provisions." They are something quite different. I use the essay to reflect more broadly about what they are, what purpose they serve and were intended to serve historically, and broader questions that they raise about claims of "religious neutrality" by the state toward matters educational--public or private.
Friday, July 10, 2015
I thought to add three quick thoughts to the points in Rick's post below on complicity, dignity harms, and other matters, with which I largely agree (my full response to the points made in the article by Professors Siegel and NeJaime may be found in the article to which Rick kindly links).
First, as to complicity-based claims for religious exemption. The core claim of the paper by Professors Siegel and NeJaime is that the sorts of exemptions requested in Hobby Lobby and several subsequent controversies are "distinctive" in "form and social logic" because of the issue of complicity in the wrongful conduct of others, a feature that was not present in previous religious exemption cases. Professors Siegel and NeJaime do seem at certain places to say that complicity focuses on the wrongful acts of others. But at several other points, they are much more interested in the third party's character than in his conduct. They write, for example, that complicity-based exemption claims are distinctive because they focus on the accomplice's "relationship to the third party," or that such claims are "oriented toward third parties who do not share the claimant’s beliefs about the conduct in question," or that such claims are really about conflicts between the "traditional morality" of the accomplice and the other sort of morality (progressive morality?) of the third party.
This sort of movement from conduct to character is nicely captured in their comments about Thomas v. Review Board. For those that may not remember, Thomas concerned a request for religious accommodation that also was based on an objection dependent on the concept (if not the precise language) of complicity: “Thomas admitted before the referee that he would not object to working for United States Steel or Inland Steel…produc[ing] the raw product necessary for the production of any kind of tank…‘[because I] would not be a direct party to whoever they shipped it to [and] would not be…chargeable in…conscience.” By contrast, working on tank turrets, Thomas believed, would render him a “direct party to”—that is, someone who aided or assisted—those third parties who contributed to the war effort. Professors NeJaime and Siegel purport to distinguish Thomas on the ground that Thomas did not “single out a particular group of citizens as sinning.”
That's both incorrect and irrelevant. It's incorrect because Thomas did single out those citizens to whom weaponry would be shipped and who would use it in ways to which he objected in conscience. And it's irrelevant because it mistakes the relevant issue as character rather than conduct. Singling out the morality or the character traits of third parties makes no difference, since the conduct, not the character, of the third party is what matters for complicity-based claims. Of course, the conflation of conduct and character is a recognizable though deeply regrettable move in many of the sorts of disputes implicating these issues. But, at least historically, accomplice liability (in criminal law, for example, where it is most at home) focuses on the conduct, not character, of the principal in addition to the state of mind of the accomplice (as Rick notes). And Thomas is hardly the only case in the accommodation canon that looks like this. I list some others in the paper.
Second, on dignitary harms, I'd point out the following interesting language in Justice Kennedy's concurrence in Hobby Lobby: "In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts." Liberties conflict in our legal system; do we gain something by noting that dignities conflict as well? Is Kennedy saying that Hobby Lobby could have asserted that the contraception mandate injured its dignity? That seems to be the way he sees its statutory claim. And that injury gives rise to...what? Here the plaintiff was relying on RFRA. Could it have relied on the Due Process Clause? Suppose that in a hypothetical future case (after RFRA is repealed), this sort of dignity claim conflicts with the sort of dignity claim favored by Professors Siegel and NeJaime--a "traditional morality" claim against a "progressive morality" claim. What sort of standard will we use to adjudge such disputes? May one hope against hope that the Supreme Court will forebear from constitutionalizing the true foundations of human nature and identity?
Third, suppose we were to constitutionalize dignitary harm in the way advocated here and elsewhere. And suppose we were to do so after the fashion sometimes advocated by third-party-harm scholars. We could say, for example, that religious accommodations that impose dignitary harms on third parties (substantial, or important, or material, harms, to be sure) violate the Establishment Clause. I wonder what then happens to the Establishment Clause grounds for the ministerial exception. Does the Establishment Clause cannibalize itself? As I say in the paper, I bet Cheryl Perich and many other plaintiffs who are losers in ministerial exception cases suffer quite significant dignitary harms. They are surely judged, stigmatized, demeaned, and injured in all sorts of ways (quite unpleasant ways in Ms. Perich's case). Is that kind of substantial dignitary injury, which could now be protected by the Establishment Clause, a new limit on the scope of the ministerial exception?
Thursday, July 9, 2015
I am just back from the Libertas Conference at Villanova Law School. It was an extremely edifying period of thought, reflection, and fellowship with a wonderful group of lawyers, political theorists, philosophers, historians, and journalists, including Steve Smith, Damon Linker, Christopher Tollefsen, Elizabeth and David Corey, Tuan Samahon, and Gerald Russello, among many others. Rick Garnett, Zak Calo, and I were fortunate enough to moderate the sessions over a period of three days.
The sessions really broke down into four general categories: (1) genealogical accounts of church and state in modernity (including readings by Brad Gregory and Mark Lilla, as well as by Steve Smith); (2) historical studies of the specifically English and American experience of church and state (including readings by Stuart Banner and Michael McConnell), (3) comments on the projects of cultural Christianity and secularism (John Courtney Murray, Robert Louis Wilken, and Pope Benedict XVI were on the agenda); and (4) diagnoses of and prognoses for religious freedom in the United States (here some of the readings were decidedly inferior as they included some of my recent work, but also much better stuff by Rick Garnett and Paul Horwitz).
The conference was organized by Michael Moreland with his usual grace, generosity, and aplomb. The participants' comments and insights will influence my own thinking and writing for a while, in ways I hope to note by and by. But here's one initial thought having to do with scholarly method. There are of course many different ways to make scholarly contributions in law: argument in the service of changing doctrine, synthesis of a body of law to arrive at a new insight, normative pleas for turns or returns to various positions having assertedly desirable political results, studies of empirical states of affairs, and so on. But my own view--helped along and shaped by the participants at the conference (as well as by posts like this one)--is that we are at the beginning of the flowering of an interesting period of long-view, retrospective, critical diagnostic scholarship in law and religion and constitutional law more broadly. Not everybody will be interested in this sort of approach, of course. Others in the field have different projects and different objectives. But at least for me, this is an invigorating thought.