Monday, January 22, 2018
Journal of Catholic Legal Studies Symposium on "Christian Legal Thought: Materials and Cases" by Brennan and Brewbaker
My excellent students, Liam Ray and Nick DeMarco, have put together a symposium as part of their work on the Journal of Catholic Legal Studies at St. John's on the new casebook on Christian Legal Thought by Patrick Brennan and William Brewbaker. The announcement for the event is below:
This Friday, January 26, the Journal of Catholic Legal Studies (a publication of St. John’s University School of Law) will host a symposium on the new casebook Christian Legal Thought: Materials and Cases (2017) by Patrick M. Brennan (Villanova) and William S. Brewbaker III (University of Alabama). The symposium will take place at the New York Athletic Club in Manhattan from 3 PM to 6 PM, with a reception at the Club following from 6 PM to 7 PM. It will feature as panelists both casebook authors, as well as Professors Randy Beck (University of Georgia), Angela C. Carmella (Seton Hall), Richard W. Garnett (Notre Dame), Michael P. Moreland (Villanova), and David A. Skeel, Jr. (University of Pennsylvania). The event is free and open to the public (please note the New York Athletic Club’s dress guidelines). More information, including whom to contact with questions, is available here. The January 19 deadline to RSVP has been extended to January 25.
Tuesday, December 12, 2017
My partner in crime, Mark Movsesian, and I have a podcast on last week's oral argument in Masterpiece Cakeshop. We discuss the back and forth among the justices and the lawyers on both the compelled speech and the free exercise claims, the analogy to race, the status/conduct distinction, and much else (bookended by a little François Couperin (dit "le Grand")).
Tuesday, December 5, 2017
The Masterpiece Cakeshop case was argued today before the Supreme Court. Most of us ordinary folk thought that the compelled speech argument was going to be the show. That still may turn out to be the case, since reading oral argument for clues as to the decision is not so reliable.
Still, reading through the transcript today, and in particular the colloquy among JJ. Kennedy, Alito, Gorsuch, the Chief, and counsel for Colorado, it seemed to me that the Free Exercise Clause was the surprise of the day. Those justices were pretty focused on the "animus" exhibited by one of the Colorado Civil Rights commissioners, additional comments in a similar vein by a second, and (especially in J. Alito's questioning--see 58-59) evidence that the Commission found no fault with bakers who refused to make cakes for clients who espoused views critical of homosexuality--indeed, that approved such decisions "in light of the offensive nature of the requested message." See Masterpiece Cakeshop, 370 P.3d at 282 n.8.
I didn't expect the Free Exercise Clause claim to make any headway. But this is exactly what Tom Berg and Doug Laycock emphasized in their fine brief (which was noted by counsel at oral argument). I've got my own reservations about animus arguments. But kudos to the two of them for making this argument. Who would have thought that this might be the case to give the utterly desiccated Free Exercise Clause a little juice?
Monday, December 4, 2017
Wednesday, November 29, 2017
Wednesday, November 8, 2017
I'm delighted to be participating in the annual conference of the Notre Dame Center for Ethics and Culture, which begins tomorrow and runs through Saturday. This year's theme is "Through Every Human Heart" and focuses on ideas of good and evil.
I'm on a criminal law panel moderated by Rick Garnett and together with Cecelia Klingele, John Stinneford, and Meghan Ryan. I think Tom Berg is also on another panel involving free speech. My remarks will consider the fate of evil as a concept in scholarship about criminal law and punishment. If I have some time left over, I'll talk about good too. My general thesis is that both of these ideas are basically irrelevant in academic discussion of criminal law (I wrote something about this when I was just a young MOJ pup years back).
Monday, October 30, 2017
Sir Roger Scruton will deliver the keynote address at the second meeting of The Tradition Project, convening this Thursday, November 2, at the New York Athletic Club, 180 Central Park South. Reception at 6:00, address at 7:00.
The title of his lecture is "Tradition, Culture, and Citizenship." Please refer to this notice for more details about the project, and please write either to me or to Mark Movsesian if you are interested in attending.
Friday, October 20, 2017
From "The Quest for Community" 66 (1953):
The fantastic romanticism that now surrounds courtship and marriage in our culture is drawn in part no doubt from larger contexts of romanticism in modern history and is efficiently supported by the discovery of modern retail business that the mass-advertised fact of romance is good for sales. But the lushness of such advertising obviously depends on a previously fertilized soil, and this soil may be seen in large part as the consequence of changes in the relation of the family to the other aspects of the social order. The diminution in the functional significance of the family has been attended by efforts to compensate in the affectional realm of intensified romance. Probably no other age in history has so completely identified (confused, some might say) marriage and romance as has our own. The claim that cultivation of affection is the one remaining serious function of the family is ironically supported by the stupefying amount of effort put into the calculated cultivation of romance, both direct and vicarious. Whether this has made contemporary marriage a more affectionate and devoted relationship is a controversy we need not enter here.
Monday, October 9, 2017
Here's another new paper of mine, On the Uses of anti-Christian Identity Politics. Abstract follows:
This short essay, written for a conference on “Faith, Sexuality, and the Meaning of Freedom” held at Yale Law School in January 2017, briefly explores the emerging phenomenon of anti-Christian identity politics. The essay focuses on one particular legal source of it: a recondite provision of the so-called Treaty of Tripoli of 1796, which states that “the government of the United States is not, in any sense, founded on the Christian religion.” The uses to which the phrase has been put, it turns out, are more important than its confused and obscure historical meaning. In evaluating anti-Christian identity politics in only some of these uses, the essay considers the recent claim by Professor Mark Lilla that contemporary Americans — and American liberals in particular — ought to abandon “the politics of identity” in favor of a politics of shared citizenship.
Lilla is right that identity politics as practiced today have further corroded the commonalities that remain among Americans. Identity politics also render compromise on various culture-war issues more difficult: any policy or legal victory for the opposition, however small, assumes additional symbolic power and must therefore be resisted all the more fiercely. Yet the pathologies of identity politics are only symptoms of a more potent sickness in American political and cultural life. Americans, as citizens, share less and less. They disagree in deepening ways about the nature of the political and moral good, about justice, and about what sort of people they are and aspire to be. In short, identity politics are not the cause of, but a response to, political and cultural fragmentation. And anti-Christian identity politics, like Christian identity politics, represent one strain of that response — one ostensible point of rendezvous for a nation whose people are increasingly disaffected with and alienated from one another.
Here's a new paper of mine, The Two Separations. And here's the abstract:
There is nothing self-evidently attractive about separation — whether of church and state or anything else — as a model for individual or collective life. Pursuing separation is not like pursuing knowledge or friendship — ends that are intrinsically good. Separation must be justified by some contingent reason. Though the Constitution speaks of the free exercise of “religion” and “religion’s” non-establishment, much of the confusion about separation as an American civic ideal results from a failure to focus on the specifically historical and contingent justifications for it. These justifications concern not “religion” in general or in the abstract but Christianity in specific — Christianity being, as a historical and cultural matter, the central religious tradition of the United States.
These historical justifications have taken two cardinal forms. The first concerns the politico-theological benefits that are believed to devolve onto Christian churches, or onto Christian believers, from division from the state, and the general social and political advantages derived therefrom. The second involves the secular benefits to the liberal democratic state of unbreachable barriers against the civic and cultural influence of Christianity. The first justification is more ancient, but the second is more powerful today. The first is oriented positively, and the second negatively, toward the cultural and political value of Christianity in the United States. The first sees Christianity as precious. The second sees it as irrelevant or even obnoxious.
This chapter distinguishes and explores the two separations — separation as a specifically Christian piece of political theology, in large part for the benefit of a Christian civil society; and separation as a specifically secular position for the benefit of a liberal society that wishes to divest from and repudiate Christianity. It then describes the allure of equality and nondiscrimination as church-state ideals, their ascendancy in late twentieth century constitutional law, and the sense in which they are believed to have supplanted separation.
But neither equality nor nondiscrimination delivers what it promises: a valueless perspective on the social and political worth of Christianity. In fact, their perspective is decidedly negative. The chapter explains this claim by comparing the use of these principles in the contexts of race and sex discrimination, where the overriding assumption is that race and sex are fundamentally irrelevant considerations, and obnoxious and illegitimate bases on which to make laws and to order society. Transposed to the context of religion — and, as this chapter argues, the transposition in reality concerns Christianity specifically — a similar assumption holds: that Christianity is fundamentally an irrelevant, or even an obnoxious, and illegitimate, influence in the making of laws or the structuring of the cultural and political realms. Indeed, in a society in which Christianity has had such overwhelming predominance, insisting on equality is tantamount to squelching it. This view is not neutral as to the value of Christianity in contemporary American politics and society. It is nothing less than an expression of the second separation.