Wednesday, June 29, 2022
Our Center for Law and Religion (which I co-direct with Mark Movsesian) is co-sponsoring with our longtime partner institution, the Università LUMSA in Rome, a conference in Rome next week: Liberalism's Limits: Religious Exemptions and Hate Speech. We've got a wonderful group of presenters representing a broad range of perspectives. Cesare Mirabelli, the president emeritus of Italy's Constitutional Court, and the political historian Chantal Delsol, will kick things off, followed by three workshops considering the themes of the conference. More soon on the papers.
Tuesday, June 21, 2022
Way back in 1996, my wife Nicole Stelle Garnett was a young lawyer with the scrappy crew at the Institute for Justice, and participated in a challenge to the Maine tuitioning program that the Supreme Court just (finally) ruled against today in Carson v. Makin. (I filed an amicus brief in the case, for Agudath Israel, if I recall.) I usually don't buy claims about the "arc of history" but, this time, the long journey ended in a good place. The repair of the Court's education-funding doctrine over the last 20 years has been striking.
I was sorry to see Justice Breyer, in dissent, still beating his drum about the judicial obligation to evaluate state policies with an eye toward managing "strife" and "division." As I explained (at great length!) here, the "political divisiveness along religious lines" argument in church-state law has always been wrong:
Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good. This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument. The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is religiously based social conflict - or, as the Court put it in Lemon, political . . . divisiveness on religious lines? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the principle it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally? Working through these questions, I am mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism (is) the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.
Sunday, June 19, 2022
My friend and colleague, Dan Philpott, ran a research project called "Under Caesar's Sword", a collaborative global project that investigated how Christian communities respond when their religious freedom is severely violated. And, this Fall, he is putting on a six-week, online course on the subject, which should be great. Click the link to register!
Tuesday, June 7, 2022
Friday, May 27, 2022
A prominent structural feature on the surface of Professor Vermeule's Common Good Constitutionalism is its two-level presentation of CGC. One reason the book has received such divergent reactions is inattention to this two-level structure.
Level one is Generic CGC. This is in Chapter 1. This part is presented—and is to be taken—as correct, even if not entirely at face value. Vermeule deliberately leaves underdeveloped the key concept of the common good with respect to the God and religion, for example. This can be misleading even in ways that the author may not have intended. In any event, Generic CGC can more or less be taken as true except for what it explicitly disclaims addressing.
Level two is Vermeulean CGC. This in Chapters 2 and 5. The author explicitly advises the reader about the detachability of Vermeulean CGC from Generic CGC. Among other features, this insulates Generic CGC from warranting rejection just because Vermeulean CGC is shown to warrant rejection.
So far so good. As a demonstration of the intelligence and strategic foresight of the author, this structural feature has shown its utility in anticipating and enabling facile authorial responses to the divergent reactions to the book thus far.
The divergence is that devotees warmly embrace it at Level One while critics denounce it at Level Two. I'm inclined to believe that both reactions are correct. Generic CGC is to be embraced; Vermeulean CGC is to be abjured.
This inclination is unsurprising, of course, given Vermeule's inability to distinguish Generic CGC from the classical natural law grounding Jeff Pojanowski and I were advocating years ago for fidelity to the U.S. Constitution as positive law. Generic CGC is just another label for the same understanding of classical natural law we and many others rely upon for St. Thomas Aquinas's understanding of law in terms of its four causes. We took up residence on Level One a while ago and are always happy to welcome others.
Pojanowski and I have differences with Vermeulean CGC, to be sure, but then again these are exactly the kinds of differences one would expect from a correct understanding of Generic CGC. As for Generic CGC as a new label for the classical Thomistic understanding of law's essence, the problem with Vermeule's new branding is its emphasis on just one of law's four causes: the common good (final cause). This tends to efface the necessary contributions of law's other three causes: ordinance of reason (formal cause), made by one with public authority/care for the community (efficient cause), and promulgated (material cause).
My advice for people trying to make sense of Common Good Constitutionalism is to pay close attention to the multilevel presentation throughout. This includes the distinction between Generic CGC and Vermeulean CGC. But it also includes attentiveness to other features of Vermeule's arguments both in the book and elsewhere that suggest the book's intentional incompleteness. Roughly contemporaneously with the publication of Common Good Constitutionalism, for instance, Vermeule published with co-author Conor Casey an article titled Myths of Common Good Constitutionalism. At the operational level for lawyers and judges, this Myths piece is much more helpful than the book that Myths tells you how not to read.
May 27, 2022 | Permalink
While I'm at it, here's a little notice for a new paper by Professor Steven Smith that may be of interest to MOJ readers, from the same conference organized by Professor Helen Alvaré as the one for which I wrote the paper below. Steve's paper is The Church in the Twilight and the abstract is below. It's well worth your time.
Writing in the 1970s, Robert Nisbet observed that we can observe in history “twilight periods”– the late Roman Republic, the late Roman Empire, the late Middle Ages– in which one form of civilization was collapsing and another form was emerging; and Nisbet believed that the West is currently in such a period. In recent years similar assessments have proliferated, coming from various points on the political spectrum. Such assessments are inherently speculative; nonetheless, they might naturally influence our political and cultural decisions: choices that might make sense when a society is growing and vibrant might make less sense in a period of decadence or collapse. In the area of religious freedom, more specifically, institutional religious freedom has in American history been secondary to or derivative of a dominant emphasis on individual religious freedom; and these priorities have been consistent with the individualism that has been a central and celebrated feature of Western civilization. But there is reason to think that this individualism now underlies some of society’s serious ailments. In this situation, it may be that institutional religious freedom– freedom of the church– should be the priority.
Thursday, May 26, 2022
A new draft paper, building on some work I've done on the nature of "establishment" today, its relationship to free exercise and exemption from general law, and particularly the idea of establishment as "regime" in classical political theory. One of the more controversial claims in the paper is that inquiries about "religion" as a legal category are no longer worthwhile from a scholarly perspective (though they continue of course to be highly necessary from a practical, lawyerly perspective), except as a way to conceive the shifting dynamics of power within the regime. Here's the abstract:
The individual has complete autonomy of choice respecting matters of sex, gender, and procreation. The findings of science as established by the knowledge class, together with the preferences of that class in this domain, should be imposed on everyone. These views reflect two central creeds of the new establishment. They, or statements like them, are the basis for policies across the nation touching many walks of life, from business to education, media, advertising, health care and medicine, and more.
Whether these propositions and others like them constitute a “religious” establishment is irrelevant. To be sure, there are arguments that it is religious. But the hypertrophy of the concept of religion in American law has made the legal category “religion” so malleable as to render it useless as an analytical tool. And, at any rate, religious belief responds to the world in which it is situated. When that world tells dissenting citizens that their beliefs are irrational, anti-scientific, and benighted—and, indeed, that their objections to new establishment creeds are discreditable because they are religious—dissenters may be forgiven for taking the world at its word. If these dissenting views are religious, it is the new establishment that has made them so and, in consequence, entangled itself in religious controversy.
Free exercise exemption has been thought a way to resist the new establishment. Yet the dynamics of resistance are ambiguous. Individual exemption—unless connected to a larger strategy—can validate and strengthen the new establishment, entrenching the supplicant position of the exempted. Many advocates of exemption do not object to this state of affairs. They insist that they have no interest in disrupting the new establishment. They are committed to it, too. Yet partisans of the new establishment are not wrong to sense possible danger from expanding rights of free exercise. These rights, if synthesized and organized, could become broader pockets and sub-communities of disestablishment. There is a continuum between free exercise and disestablishment. Dissenting positions on the family, education, religion, sex and gender, and others might be stitched together from the disaggregated set of free exercise exemption micro-victories to constitute challenges to the new establishment. To do that, however, would demand concerted action involving some mechanism other than exemption, and it is not plain that advocates of religious exemption are interested in that project. But the project may be coming whether they like it or not. Unlike the new establishmentarians, some free exercise advocates have not adequately appreciated (or do not wish to see) that the real fight is not about an individual exemption here or there, but about the future shape of the American establishment.
Tuesday, May 24, 2022
Mary, Help of Christians, Pray for Us -- World Day of Prayer for the Church in China -- Prayer to Our Lady of Sheshan
Today is the feast of Mary, Help of Christians. This is one of my favorite titles for Mary, a product of my Salesian high school education.
Today is also the World Day of Prayer for the Church in China. In 2007, on Pentecost, Pope Benedict XVI released a letter to the Church in China. He asked that May 24 be kept as a day of prayer for the Church in China. He wrote that on that day, "the Catholics of the whole world – in particular those who are of Chinese origin – will demonstrate their fraternal solidarity and solicitude for you, asking the Lord of history for the gift of perseverance in witness, in the certainty that your sufferings past and present for the Holy Name of Jesus and your intrepid loyalty to his Vicar on earth will be rewarded, even if at times everything can seem a failure." Longer excerpt:
19. Dear Pastors and all the faithful, the date 24 May could in the future become an occasion for the Catholics of the whole world to be united in prayer with the Church which is in China. This day is dedicated to the liturgical memorial of Our Lady, Help of Christians, who is venerated with great devotion at the Marian Shrine of Sheshan in Shanghai.
I would like that date to be kept by you as a day of prayer for the Church in China. I encourage you to celebrate it by renewing your communion of faith in Jesus our Lord and of faithfulness to the Pope, and by praying that the unity among you may become ever deeper and more visible. I remind you, moreover, of the commandment that Jesus gave us, to love our enemies and to pray for those who persecute us, as well as the invitation of the Apostle Saint Paul: "First of all, then, I urge that supplications, prayers, intercessions, and thanksgivings be made for all men, for kings and all who are in high positions, that we may lead a quiet and peaceable life, godly and respectful in every way. This is good, and it is acceptable in the sight of God our Saviour, who desires all men to be saved and to come to the knowledge of the truth" (1 Tim 2:1-4).
On that same day, the Catholics of the whole world – in particular those who are of Chinese origin – will demonstrate their fraternal solidarity and solicitude for you, asking the Lord of history for the gift of perseverance in witness, in the certainty that your sufferings past and present for the Holy Name of Jesus and your intrepid loyalty to his Vicar on earth will be rewarded, even if at times everything can seem a failure.
In 2008, Pope Benedict XVI published a Prayer to Our Lady of Sheshan to be prayed by the Universal Church on this day, May 24, each year.
Prayer to Our Lady of Sheshan
Virgin Most Holy, Mother of the Incarnate Word and our Mother,
venerated in the Shrine of Sheshan under the title "Help of Christians",
the entire Church in China looks to you with devout affection.
We come before you today to implore your protection.
Look upon the People of God and, with a mother’s care, guide them
along the paths of truth and love, so that they may always be
a leaven of harmonious coexistence among all citizens.
When you obediently said "yes" in the house of Nazareth,
you allowed God’s eternal Son to take flesh in your virginal womb
and thus to begin in history the work of our redemption.
You willingly and generously cooperated in that work,
allowing the sword of pain to pierce your soul,
until the supreme hour of the Cross, when you kept watch on Calvary,
standing beside your Son, who died that we might live.
From that moment, you became, in a new way,
the Mother of all those who receive your Son Jesus in faith
and choose to follow in his footsteps by taking up his Cross.
Mother of hope, in the darkness of Holy Saturday you journeyed
with unfailing trust towards the dawn of Easter.
Grant that your children may discern at all times,
even those that are darkest, the signs of God’s loving presence.
Our Lady of Sheshan, sustain all those in China,
who, amid their daily trials, continue to believe, to hope, to love.
May they never be afraid to speak of Jesus to the world,
and of the world to Jesus.
In the statue overlooking the Shrine you lift your Son on high,
offering him to the world with open arms in a gesture of love.
Help Catholics always to be credible witnesses to this love,
ever clinging to the rock of Peter on which the Church is built.
Mother of China and all Asia, pray for us, now and for ever. Amen!
May 24, 2022 | Permalink
Monday, May 23, 2022
Some people think that punishment of criminals is justified by what Jeffrie Murphy called "retributive hatred," where that hatred, as Murphy underscored, is hatred of criminal persons, not just of their crimes. Christians, however, can never rightly hate persons, and eventually Murphy, who was a Christian, disowned retributive hatred and defended instead a justification of punishment on the basis of agape or charity. Murphy's account of punishment on the basis of Christian love provides the starting point in my new paper, "Punishment among Friends," defending legal punishment of persons except when mercy, properly understood, precludes it. The thrust of my argument in the paper is that because, as Aquinas contends, "all law aims at establishing friendship," sometimes law must redress violations of commutative justice by punishing justly convicted malefactors. Sometimes what the love of friendship requires is punishment for the good of the malefactor and his or her restoration to a rightful place in the community. Friendship can easily seem irrelevant as a norm for our common life in the civil order as we know it especially today, but Aquinas teaches us that friendship is always to be the governing norm where people live together because charity itself, from the reach of which no one is excluded, is itself a certain kind of friendship. Bringing together law, love, friendship, mercy, and punishment, this paper aims to show how criminal justice reform animated and disciplined by Christian love would be neither squishy nor vengeful. A Christian regime of criminal punishment would punish, proportionately, out of the love of friendship except where the judge judged that mercy should instead be employed to restore malefactors to the order of the virtuous. John Noonan long ago ventured that "the central problem of the legal enterprise is the relation of love to power," and the love of friendship is precisely what Christians can bring to the public square today as the right ultimate criterion for necessary reform of the criminal justice system with its mighty power. In all of this, Christians but especially Catholics need not be shy about the need for the supernatural to correct and transform the natural, for this is precisely what charity does (cf. Rom. 5:5).
May 23, 2022 | Permalink
Sunday, May 22, 2022
Today’s Sunday edition of the St. Paul Pi0neer Press includes a guest editorial I wrote, with a less commonly heard narrative on the subject of abortion:
Friday, May 13, 2022
Sometimes the simplest questions are the easiest to answer. All federal judges take an oath to administer justice under the Constitution and laws of the United States. This is their promise, to render to each his or her lawful due. This thing lawfully due to each person in justice is his or her ius. The key question for a judge to ask in deciding any case should be: "What’s the ius?" Asking this question in every case can orient at the outset, channel throughout, and confirm at conclusion.
“What’s the ius?” is also often a simpler and easier question to answer than “what’s all the potentially applicable law?” or “what are all the material facts?” All of the law and all of the facts may sometimes be necessary to know, but other times it is unnecessary to go into all of that. In the famous case of Marbury v. Madison, for example, Marbury’s ius was his commission. The Court lacked jurisdiction to order Madison to render this ius to Marbury. It was therefore unnecessary for the Supreme Court to have gone into all that Chief Justice Marshall wrote in his opinion for the Court.
We Catholics have been invited by our bishops to pray today in a special way for the Justices of the Supreme Court as they continue their deliberations in Dobbs v. Jackson Women’s Health Organization, No. 19-1392.
My prayers in particular have been drawn to Chief Justice John Roberts, who is a model judge for me and for many others. The Chief Justice of the United States takes the same judicial oath as every other federal judge. I pray that he fulfills this oath. What that requires in this precise case, I do not pretend to know in all its particulars. There are many ways of going wrong, and those are to be avoided. But there are also many ways of doing right, and I pray that he is drawn to those.
I hope that Chief Justice Roberts orients his deliberations with his colleagues around the question: What’s the ius? What is the thing that we are being asked to render as lawfully due?
The ius requested by Jackson Women’s Health Organization and other plaintiffs is an immunity. More precisely, these plaintiffs’ principal prayer for relief is an order allowing them to avoid prosecution in state court for anticipated violations of a state-law prohibition against aborting an unborn baby after fifteen weeks gestational age. They claim this immunity from state law as their due under federal law.
It seems very likely that Chief Justice Roberts has already decided to order denial of the requested relief. Through his questions at oral argument, the Chief Justice signaled that the viability line on which plaintiffs rely was an invention of the Court and not well-founded. The plaintiffs need the Court to hold that line in order to win. The Court will not hold that line and they will therefore lose. That is as it should be.
The harder issue that the Chief Justice seems to be wrestling with is what to say about drawing a new line. Some have noted the Chief Justice’s apparent attraction to articulating a constitutional requirement that individuals be permitted some shorter period of time before viability to seek an abortion in a regulated but otherwise open and legally protected market for abortion services.
The Chief Justice should resist this attraction. Apart from the lack of warrant in the Fourteenth Amendment for drawing such a line, there is no warrant in this case for doing so. The plaintiffs’ claimed injury comes from the inability to perform lawful abortions after fifteen weeks. That claim lacks merit. It would be gratuitous to volunteer a new line in this case.
Justice Alito’s leaked draft does not volunteer a new line. It applies rational basis review and recognizes the legitimate interests of the state advanced by the law it has enacted. Chief Justice Roberts should do likewise.
To draw a new temporal line in pregnancy before which federal law purportedly preempts state-law protections against intentional killing would be to continue the federal judiciary’s complicity in the denial of the equal protection of the laws to prenatal persons within the jurisdiction of each state. But the rights of these prenatal persons are not directly before the Court in this case, which pits the authority of the government against the interests of abortion providers. It is enough to decide that the law does not entitle the abortion providers to a federal judicial order shielding them from the consequences of violating the state law at issue.
On the question of line drawing regarding life-and-death protections for prenatal persons more generally, the Chief Justice’s opinion for the Court in Rucho v. Common Cause should be his guide. The federal judiciary may not order relief on any constitutional claim that the government has gone too far in protecting prenatal life unless that claim is grounded in judicially discoverable and manageable standards for resolving it. These standards must rest on a “limited and precise rationale,” and must be “clear, manageable, and politically neutral.” These are the criteria identified by Chief Justice Roberts in his opinion for the Court in Rucho v. Common Cause. They are taken from Justice Kennedy’s concurrence in Vieth v. Jubelirer. These criteria cannot be satisfied when the question is how far along in pregnancy a prenatal person must have developed in order to be protected by the law. My prayer is that Chief Justice Roberts and his colleagues recognize that the federal courts cannot grant abortion providers’ prayers for relief from enforcement of prenatal-person-protecting laws like the one at issue in Dobbs v. Jackson Women’s Health Organization.
May 13, 2022 | Permalink
Saturday, May 7, 2022
Fifteen years ago (!), when I was visiting at the University of Chicago Law School (a wonderful experience), I contributed a response to a post (on the Law School's blog . . . remember those?) by Geof Stone, in which he shared what he called a "painfully awkward observation" that the justices in the majority of the Court's Gonzales v. Carhart - in which the Court upheld a ban on partial-birth abortions -- were Catholic. "It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore[,]" he said. "[T]hese justices have failed to respect the fundamental difference between religious belief and morality," he charged.
Brian Leiter recently re-upped Prof. Stone's con-law version of The Black Legend, here. He wrote (while conceding, as anyone must, the "unhappy fact is that there are clearly colorable legal arguments for overruling Roe"):
Stone's analysis generated an uproar, but it was correct then, as it would be correct now: someone with a conservative Catholic upbringing will of course regard abortion as verboten, and will thus find attractive--even without recognizing their real motivations--any colorable legal arguments that return the question of its permissibility to the legislative process (knowing full well, of course, that its availability will be restricted as a result).
As I wrote, though, in my response to Geof way-back-when, (a) there is nothing "Catholic" about the idea that the Constitution did and does not disable political majorities from enacting reasonable regulations of abortion (including, among other things, a prohibition on a procedure that involves sticking a scissor through the skull of a still-living fetus and "evacuating" his or her "cranial contents"), and (b) it is at least as likely that the non-Catholic justices' (both in Carhart and in -- it appears -- Dobbs) various commitments supplied "motivations" for disregarding what many of us think are straightforward, unremarkable analyses and arguments.
I wrote then (I still cannot get over how long ago that was!):
[I]t is not clear why the claim "human fetuses are moral subjects and this fact constrains what should be done with and to them" is any more "religious", or any less "moral", than the claim "all human beings are moral equals, regardless of race, and should be treated as such in law." What's more, even if it were true that the former claim is "religious" (certainly, for many, it is religiously motivated or grounded), it does not violate -- indeed, I do not think it even implicates -- the "separation of church and state" that our Constitution is thought to require.
It is interesting, I think, that Professor Stone invokes the example of Justice Brennan. Although I believe that Roe was wrongly decided, it is impossible not to admire the Justice. And, to me, it is clear that Justice Brennan's powerful opinions in Furman and Gregg -- with their strong and stirring invocations of "human dignity" as a limit on what governments may do the accused -- reflect views that, for Justice Brennan, were rooted in his religious faith. Was he, therefore, a "faith-based justice" when he voted to strike down every death-penalty law in the nation?
Tuesday, May 3, 2022
On January 22, 1973, I was a high school student working a pro-life information table at the West Virginia University student center when we heard about the Supreme Court’s decision in Roe v. Wade. I recall the horror of learning that the Court had crushed the basic rights of an entire class of precious human beings—our tiny unborn brothers and sisters. I know that the horror I felt that day, and vividly remember to this day, is the horror many people who see the issue differently than I do are feeling today. These include a great many good and honorable people who deeply care about the well-being of women, especially vulnerable women, and believe that their rights are being crushed. Although I disagree with them about the rights and wrongs of abortion, and indeed applaud the reversal of Roe as a victory for justice and constitutional integrity, I feel no temptation to exult.
Roe v. Wade needed to be reversed, as I predicted it would be https://www.firstthings.com/article/2021/10/roe-will-go, not only because it was a grave injustice against the unborn, but also (and in the first place) because it was an unconstitutional decision—an act of “raw judicial power.” The right to abortion it proclaimed lacked any basis in the text, logic, structure, or historical understanding of the Constitution. To say that it was poorly reasoned is an understatement. The truth is that it wasn’t reasoned at all. This left its defenders with an impossible task—defending the literally indefensible.
That does not mean, however, that voting to reverse Roe is an easy thing for justices to do. If, as the draft opinion of Justice Samuel Alito which was leaked yesterday suggests, five or possibly even six justices are voting to reverse Roe, they merit praise for courage and fidelity to principle. The Roe decision lacked intellectual credibility but did not lack influential and powerful supporters. In fact, what sustained Roe for forty-nine years was precisely the prestige, influence, and power of people in academia, journalism, entertainment, key professions and professional associations, the great philanthropies, politics, and the corporate world who were deeply invested in maintaining it, despite its manifest lack of intellectual credibility.
In the beginning, the question of abortion and then the soundness or unsoundness of Roe were not "left" versus "right" issues. There were plenty of prolife liberals or progressives, and lots of prochoice conservatives. Jesse Jackson spoke passionately for the dignity and rights of the child in the womb. As Governor of California, Ronald Reagan supported and signed into law a statute broadly legalizing abortion. In time, though, abortion and support or opposition to Roe began coding as “liberal” and “conservative.”
The conservative legal community developed a critique of Roe that, though commendable and sound in a great many ways, was not fully adequate. That critique, championed by the late Justice Antonin Scalia, supposes that nothing in the Constitution is relevant to the question of abortion prohibition or regulation—hence the matter is left by the Constitution entirely to the judgment of state legislatures. This is incorrect—indeed demonstrably incorrect—and Professor John Finnis of Oxford University and I have demonstrated its incorrectness in among other places, a brief we submitted to the Supreme Court in the Dobbs case. (Published version and supplement here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3955231; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3973183.) Justice Alito’s leaked draft cites that brief and makes excellent, if limited, use of the evidence it provides and arguments it marshals. These establish that the term “person” in the Fourteenth Amendment—an Amendment that, among other things, imposes on States an obligation to afford to persons the equal protection of the laws (including the laws against violent assaults and homicides)—was publicly understood at the time of the framing and ratification of the Amendment as including the child in the womb. The permission by a state of elective abortion, therefore, is a violation of the Constitution and should be declared by the Supreme Court to be so. This is not, however, a claim the state of Mississippi made in defending the constitutionality of its statute and requesting the reversal of Roe, nor is it the outcome the state requested. Understandably, then, the Court did not reach the question. I hope it will do so in later litigation.
As Professor Finnis and I point out in the brief, resolving the matter in the way we argue the Constitution requires does not mean that the Supreme Court should dictate abortion policy tout court. Where pregnancy poses a grave threat to maternal life and health—that is, when we are no longer speaking of elective (or “social indication”) abortions—there are policy and policy-related questions that cannot be resolved by the straightforward application of equal protection principles. These questions are, therefore, properly in the legislative domain and judgments about them should not be imposed by the judiciary.
Two more points.
If, as the leaked draft opinion seems to suggest, the Supreme Court has decided to reverse Roe and return the question of abortion entirely to the legislative domain, then the pro-life movement faces a new set of challenges—challenges even more daunting than overturning Roe. In the face of profound opposition from the wealthiest, most powerful, and most influential forces and institutions in the country, the movement needs to extend the protections of law on terms of fairness and equality to mothers and children alike. Going still further, it needs to work in both the public and private spheres to provide necessary support for mothers and children, never allowing their interests or well-being to be pitted against each other. To its great credit, the pro-life movement has been doing this since before Roe v. Wade—again, in the face of hostility from the most powerful forces. We will need now to do more and better. We can and we will.
What about the leaking of the Alito draft? It is an outrage, of course. Even if the leaker is caught and subjected to appropriate disciplinary proceedings, the damage to the Court will be deep and abiding. Anyone who has worked in the building knows that trust is indispensable to the functioning of the institution. The leak has destroyed trust. Perhaps someday the Court will get it back. But not in my lifetime. Probably not in my students’ lifetimes. For decades—at least—there will be the mere simulacrum, a pretense, of trust; there will not be trust. Trust was shattered in what appears to have been a desperate effort to unleash forces that would bully justices into doing something other than what they regarded as their constitutional duty. In this respect, it is tragically in line with the broader trend in our culture and politics for people to get their way by bullying others. People on the left can think of the examples from the right that stand out in their minds. People on the right can think of the examples from the left that stand out in theirs. It is time—long past time—for decent and honorable people on both sides to say: “Enough! We will not tolerate bullying. We will not tolerate it from our political opponents. But we will be equally and equally vocally intolerant of it when it comes from our political allies.”
May 3, 2022 | Permalink
This review essay, in The New Atlantis, connects nicely with the moral-anthropology theme that has been a part of the Mirror of Justice conversation for nearly two decades (!) now. Here's the opening:
In thinking about technology, three questions are fundamental. What is technology for? What are we for? And how is our answer to the first question related to our answer to the second?
Since the Enlightenment, we have come to take for granted that there really is no relation, because we cannot publicly agree on what humans are for. We can answer that question only privately. But technology is public, not private. We create it for common use, ostensibly in the service of the common good. If we cannot broadly agree on what we are for, then how can we reason together about what our technology is for?
It appears that we cannot.
It's a long piece, and I cannot do justice to it here. But again: We've often observed, and reflected on the observation, that one cannot really "do law" without engaging the question, "what are human persons?" Certainly, a "Catholic legal theory" must be one that gives priority to this question.
On this day, in 1606, Henry Garnet, S.J. was hanged near St. Paul's Cathedral in London. (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.) He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot." (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.") Ora pro nobis.
Friday, April 29, 2022
I have a short piece, coauthored with my student, Joseph Graziano, up at Newsweek, on the Kennedy case (and other things). A bit:
Both Boston and Bremerton have the constitutional calculus backward. Not only do they not have to exclude religious voices from their halls; under the First Amendment, they may not. Camp Constitution and Coach Kennedy have as much right to witness to their religions as any others have to witness to their ideologies on the streets or up the flagpoles of city halls. In these two cases—Shurtleff v. Boston and Kennedy v. Bremerton School District—the justices should clarify that our Constitution demands that the religious be allowed to participate in public life on the same terms as everyone else, and that, barring actual coercion, free exercise of religious speech should be welcome in the public square.
Monday, April 25, 2022
There they go again. Law professors Adrian Vermeule and Conor Casey have co-authored an impressively lengthy, effectively footnoted, and aptly titled "Argument by Slogan" piece up at Harvard JLPP's Per Curiam. Its rhetorical framing brings to mind a critical and pointedly understated observation that Professor Richard Helmholz recently made in Marching Orders. In his largely positive review at First Things of Vermeule's compact call to arms, Common Good Constitutionalism, Helmholz expressed surprise at "the harshness of debate in this area of the law," and described Vermeule's outlook as that of one engaged in "a no-holds-barred sort of contest." "It does seem a shame," Helmholz observes, "that the argument about constitutionalism has become as shrill as it has."
Helmholz is likely right about the shrillness being a shame; he is definitely right about the shrillness being shrill. Consider how Vermeule and Casey frame their response to the published version of Judge William Pryor's address to the Federalist Society’s 2022 Ohio Chapters Conference, Against Living Common Goodism:
- "Judge Pryor's advocacy of public meaning originalism is infected by a horror of judgment—a deep-seated fear that absent originalism, constitutional interpretation will collapse into a moral free-for-all where judges arbitrarily inject personal preferences into law." [p. 4]
- "In the end, Judge Pryor's core commitment is no more than animus against Justice Brennan, which does not by itself yield anything close to a coherent view. Enmity is not a theory." [p. 4]
- "To understand Judge Pryor's commitments, one must begin with the animus that galvanizes his argument." [p. 5]
- "The consequence of this core enmity is simple: Judge Pryor's argument fails if, and to the extent that, it fails to advance a methodological argument that would exclude constitutional interpretation of which Brennan could heartily approve. If Pryor has failed even to exclude Brennanism, he has achieved nothing. And as we will see, his argument in fact does nothing at all to exclude Brennanism, and necessarily lacks the theoretical resources to do so. This is because Pryor's arguments suffice only to establish thin originalism, not thick originalism; and thin originalism is entirely compatible with Brennanism."
- "In the end, Judge Pryor's core commitment is no more than an ill-defined animus against a specific style of jurisprudence, Justice Brennan's style. But brooding animus does not make for clarity of thought. Indeed, as often happens, the passion overwhelms the argument and turns it into the very thing it aims to destroy. ... Enmity is not a theory. Slogans are not arguments." [p. 19]
If one wishes to take seriously the ideas at issue instead of being distracted by the framing and motivational attributions, there's not much one can do about this rhetorical state of affairs in the short term. One can attempt to absorb or deflect, though, and then at some other time put forward a more positive vision. So for now, I'll just gesture toward that famous debater's trick from the Gipper and combine it with the professors’ favored rhetorical technique of repetition: There they go again.
Wednesday, April 13, 2022
I apologize for bursting in after such a long absence for something with something that someone might argue has only the slightest relationship with Catholic Legal Theory, but this is urgent, and this is an audience I'd like to reach! As some of you may know, the University of St. Thomas is in the midst of some leadership changes. Our President is moving to Santa Clara University, our beloved Law School Dean, Rob Vischer, will be serving as Interim University President, our equally beloved Associate Dean for Academic Affairs, Joel Nichols, will be serving as Interim Dean of the Law School, and I will be serving as Interim Associate Dean.
These rather sudden transitions are complicated by the fact that our first year Torts classes were being taught by Rob and Joel, so we are looking for Torts coverage. Here's the announcement Joel is posting: please forward to anyone you think might be interested:
The University of St. Thomas School of Law (MN) is looking to hire a visiting professor for Fall 2022 to teach Torts. The ideal candidate would have experience teaching Torts and be able to teach two sections of Torts in the fall term, due to leadership changes at the school. Torts is a 4 credit, fall-only 1L class. Courses will be taught fully in-person, unless the public health situation changes significantly.
We would consider a full year visit for 22-23 (courses in spring term TBD based on the visitor’s expertise) and would also consider a visitor who can teach one section of Torts plus another course in an area of expertise. Please send inquiries and statements of interest to Joel Nichols, incoming Interim Dean, at [email protected]. Review of applications will begin immediately.
I know the timing means that most faculty are already committed for the fall, but I would appreciate it if you would share with colleagues who might be interested and available. People should feel free to reach out to me directly at [email protected] or by phone at 651-962-4827.
Saturday, April 9, 2022
I'm posting below the syllabus for a seminar I am teaching this semester with historian Allen Guelzo on competing visions of the university.
Department of Politics
Politics 491: The Politics & Principles of Higher Education: Competing Visions of the University
Instructors: Robert P. George (Politics) & Allen C. Guelzo (Humanities)
Description/Objective: This course will examine the history, contemporary reality, and likely future of higher education, especially in the United States but also abroad. We will consider the changing and often conflicting ideals and aspirations of parents, students, instructors, and administrators from classical Rome to Christian institutions in the European Middle Ages to American athletic powerhouses today, seeking answers to fundamental practical, economic, and political questions that provoke vigorous contemporary debate.
Free Speech: As set forth in Rights, Rules, Responsibilities section 1.1.3, Princeton University strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this seminar and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds.
Gary A. Berg, The Rise of Women in Higher Education: How, Why and What’s Next (Rowman & Littlefield, 2019)
Zena Hitz, Lost in Thought: The Hidden Pleasures of the Intellectual Life (Princeton University Press, 2020)
Anthony Abraham Jack, The Privileged Elite: How Elite Colleges Are Failing Disadvantaged Students (Harvard University Press, 2019)
Anthony Kronman, Education’s End: Why Our Colleges and Universities Have Given Up on the Meaning of Life (Yale University Press, 2007)
John Henry Newman, The Idea of a University, ed. Frank M. Turner (Yale University Press, 1997)
Keith Whittington, Speak Freely Why Universities Must Defend Free Speech (Princeton University Press, 2018)
- Mark Edmundson, “On the Uses of a Liberal Education,” Harper’s (September 1997)
- William Deresiewicz, “Don't Send Your Kid to the Ivy League,” The New Republic (July 21, 2014)
- Plato, Protagoras, 320c-328d
- Aristotle, Politics, 7.13-8
- Quintilian, Institutio oratoria (Book 10)
- Petrarch, “The Ascent of Mt. Ventoux,” ed. Henry Reeve (Edinburgh, 1878), 84-89
- Vergerio, De ingenius moribus (1472)
- John Dewey, Democracy and Education (1916), chs. 6 & 7
- Clark Kerr, “The Idea of a Multiversity,” from The Uses of the University (1963)
- Lynn D. Gordon, “From Seminary to University: An Overview of Women’s Higher Education, 1870-1920,” in Wechsler, Goodchild & Eisenmann, The History of Higher Education (1997), 473-498
- Emma Whitford, There Are So Few of Us That Have Made Their Way,” Inside Higher Ed (October 28, 2020)
- Naomi Oreskes & Charlie Tyson, “Is Academe Awash in Liberal Bias?” Chronicle of Higher Education (September 14, 2020) & Phillip W. Magness, “Tenured Radicals Are Real,” Chronicle of Higher Education (September 24, 2020)
- Robert P. George, “Natural Law and Positive Law,” In Defense of Natural Law (1999)
- William E. Thro, “Embracing Constitutionalism: The Court and the Future of Higher Education Law,” University of Dayton Law Review 44 (2018-2019)
- Nat Hentoff, “Multicultural Contempt for Free Speech,” CommonQuest (Summer 1999);
- Arthur Levine & Jeanette S. Cureton, “Collegiate Life: An Obituary,” Change (May/June 1998)
- Arthur Levine & Scott Van Pelt, “5 Ways Higher Ed will be Upended,” Chronicle of Higher Education (August 25, 2021)
- James Axtell, “The Death of the Liberal Arts College,” History of Education Quarterly (Winter 1971) - https://www.learningoutcomesassessment.org/wp-content/uploads/2020/01/Axtell-1971.pdf
- Patsy Parker, “The Historical Role of Women in Higher Education” -- https://files.eric.ed.gov/fulltext/EJ1062478.pdf
- AAUP, “Data Snapshot: Full Time Women Faculty and Faculty of Color” -- https://www.aaup.org/news/data-snapshot-full-time-women-faculty-and-faculty-color#.YZQwRL3MJVo
- C.J. Libassi, “The Neglected College Race Gap: Racial Disparities Among College Completers,” Center for American Progress (May 23, 2018) -- https://www.americanprogress.org/article/neglected-college-race-gap-racial-disparities-among-college-completers/
- January 26 – What Is the Purpose of a University, and especially the kind of education we call “liberal arts”? This will be a general get-acquainted session, with a detailed review of the syllabus and readings, some preliminary questions about why, exactly, we’re all here at Princeton and what we expect Princeton to be, what Princeton has been in the past, and then the distribution of assignments as per above.
- February 2 -- The Ancient Model of Learning – What we call ‘higher education’ today takes its earliest form in in classical times. But what was its purpose? To whom was it addressed, and what were its ‘graduates’ expected to do with it?
Readings: Plato, Protagoras, Aristotle, Politics, Quintilian, Institutio oratoria (Book 10)
- February 9 -- The Renaissance Model of Learning – If the classical education gives us many of the questions we associate with ‘higher education,’ then the Middle Ages and Renaissance gives us its forms, in the monastery schools and then the universities. What did those universities aspire to teach, and how did the emphasis on virtue emerge in the Renaissance?
Readings: Petrarch, “Ascent of Mt. Ventoux”; Vergerio, De in genius moribus (1472)
- February 16 -- The Victorian Model of Learning – The medieval universities evolved in the 19th century into models of research, especially in Germany. That emergence was both challenged and accommodated in one of the most famous modern texts ever written on university life.
Readings: John Henry Newman, The Idea of a University (1852/58)
- February 23 -- The Progressive Model of Learning – By the turn of the 20th century, government had begin to look to higher education as a source of administrative expertise. How did this change the functioning of higher education, especially in the United States? Modern mass society has changed, not only what is taught, but also how universities are supposed to serve the public interest. It has, however, created serious questions about whether higher education has become purely instrumental.
Readings: John Dewey, Education and Democracy (1916), chs. 6 & 7; James Axtell, “The Death of the Liberal Arts College,” History of Education Quarterly (Winter 1971); Clark Kerr, “The Idea of a Multiversity,” from The Uses of the University (1963), 1-34
- March 2 -- Women in the University – Until the later 19th century, women were almost entirely absent from higher education. How have women challenged and changed university life since then?
Readings: Lynn D. Gordon, “From Seminary to University: An Overview of Women’s Higher Education, 1870-1920”; Patsy Parker, “The Historical Role of Women in Higher Education;” Gary A. Berg, The Rise of Women in Higher Education: How, Why and What’s Next (2019)
Spring break – March 5-13
- March 16 -- The Color of the University – Higher education in the United States, and at Princeton, was a closed door to people of color. This, too, has changed since the 19th century. But are its implications different than those posed by the entrance of women at the same time into American colleges and universities? What challenges do race pose today? – AAUP, “Data Snapshot: Full Time Women Faculty and Faculty of Color;” Anthony Abraham Jack, The Privileged Elite: How Elite Colleges Are Failing Disadvantaged Students (Harvard University Press, 2019); C.J. Libassi, “The Neglected College Race Gap: Racial Disparities Among College Completers,” Center for American Progress (May 23, 2018); Emma Whitford, There Are So Few of Us That Have Made Their Way,” Inside Higher Ed (October 28, 2020)
- March 23 -- What is a Curriculum?– Anthony Kronman, Education’s End: Why Our Colleges and Universities Have Given Up on the Meaning of Life (2007), Chs 1-3; Naomi Oreskes & Charlie Tyson, “Is Academe Awash in Liberal Bias?” Chronicle of Higher Education (September 14, 2020) & Phillip W. Magness, “Tenured Radicals Are Real,” Chronicle of Higher Education (September 24, 2020)
- March 30 – What is the Purpose of an Education? -- Readings: Donald P. Verene, The Art of Humane Education (2002); Zena Hitz, Lost in Thought: The Hidden Pleasures of the Intellectual Life (Princeton University Press, 2020); Mark Edmundson, “On the Uses of a Liberal Education,” Harper’s (September 1997) Ch 1; William Deresiewicz, “Don’t Send Your Kid to the Ivy League,” The New Republic (July 21, 2014)
- April 6 -- Law and the University: Dartmouth, Gott, Dixon, Healy, Furek, Bakke, Grutter -- Robert P. George, “Natural Law and Positive Law,” In Defense of Natural Law (1999); Kronman, Education’s End, Ch 4; William E. Thro, “Embracing Constitutionalism: The Court and the Future of Higher Education Law,” U. Dayton Law Review 44 (2018-2019)
- April 13 -- Academic Freedom & Its Purpose -- Nat Hentoff, “Multicultural Contempt for Free Speech,” CommonQuest (Summer 1999); Keith Whittington, Speak Freely Why Universities Must Defend Free Speech (Princeton University Press, 2018)
- April 20 -- How Will Universities Change? -- Arthur Levine & Jeanette S. Cureton, “Collegiate Life: An Obituary,” Change (May/June 1998); Arthur Levine & Scott Van Pelt, “5 Ways Higher Ed will be Upended,” Chronicle of Higher Education (August 25, 2021); Kronman, Education’s End, Ch 5
In addition to regular, often substantial, reading, there will be a take-home midterm examination and a final 15-20-page paper. Each student will also be responsible for helping lead one class meeting.
Grading: Midterm Exam 20%
Paper In Lieu Of Final Exam 50%
Class/Precept Participation 20%
Oral Presentation(s) 10%
Prerequisites and Restrictions: This seminar is open to all Class years. There are no prerequisites or restrictions
April 9, 2022 | Permalink
Saturday, April 2, 2022
Yesterday, a group of us from St. John’s gathered together to discuss C.S. Lewis’ famous sermon, “Learning in War-Time.” The event was one of our Reading Society gatherings at the Center for Law and Religion, and we were lucky to speak together with Mark Lanier of the Lanier Theological Library in Houston, Texas. Mark brought up the original draft of Lewis’ sermon, hand-written and, in fact, only very lightly edited. I have attached the first page of the original below.
One of many interesting insights one gains from the original is that at the very top, you can see a reference to “Deut XXVI:5 A Syrian ready to perish was my father.” This reference did not make it into the published lecture. But it is evocative of one of the themes of the sermon: the worth of seemingly frivolous or unwise activities (as learning and the pursuit of knowledge may at times seem to be) during a time of great danger, friction, and upheaval. The piece repays close and regular reading, for Christians and others alike. We were lucky to have the chance to reflect on it together.
Friday, April 1, 2022
The Pillar has the story, here. Read the whole thing, but it seems clear that the Congregation is rejecting a notion of Catholic schools according to which they are merely schools like others, but with a sprinkling of religiously themed art or character-focused programming. At a Catholic school, the "Catholic" must be about more than heritage, tradition, or affiliation; it is about character, charism, mission, and "identity." And, the relevance to cases in the United States involving the so-called "ministerial exception" (which is neither limited to ministers nor an exception) is clear:
As the document turns to the role of teachers, the congregation lines up behind an argument which has been advanced by several American dioceses in recent years which defines all teachers, regardless of subject, as ministers of religion, for the purposes of U.S. law:
“In a Catholic school, in fact, the service of the teacher is an ecclesiastical munus and office,” it says, which they exercise not only by teaching in the classroom but “also bearing witness through their lives, [through which] they allow the Catholic school to realize its formative project to witness.”
The extent to which teaching is described almost as an ecclesiastical vocation is further emphasized by the instruction, which says they must all be “outstanding in correct doctrine and integrity of life,” and requires the “initial and permanent formation of teachers.”
“Following the doctrine of the Church, it is therefore necessary for the school itself to interpret and establish the necessary criteria for the recruitment of teachers,” the instruction says. “This principle applies to all recruitments, including that of administrative personnel. The relevant authority, therefore, is required to inform prospective recruits of the Catholic identity of the school and its implications, as well as of their responsibility to promote that identity.”
Wednesday, March 30, 2022
The Catholic University of America has named (my former Notre Dame colleague) Peter Kilpatrick as its next president. (Kilpatrick will succeed my other former Notre Dame colleague, John Garvey.) Here, thanks to The Pillar, is an interesting interview with Kilpatrick about (among other things) the nature and importance of a distinctively Catholic university and the challenges that exist to the building and thriving of such an institution. Here's a bit:
For me, a Catholic university is a unique place of higher learning, where we embrace the fusion — the integration — of faith and reason, where we celebrate that there is only one truth about the world and about the human person in the world, and that’s that it all flows from God.
And it's only possible to do that at a university like a Catholic university or another religious university really authentic to its faith principle.
I think the other important thing about a Catholic university is that you integrate the disciplines because knowledge is not bite-sized pieces. Disciplines, which came about in the late 19th century at the German universities, are not intended to be in isolation. They are intended to be in context of the global society and the society in the culture that you're in.
And unfortunately, so much of what’s done at many other universities is to silo the disciplines. And that's not what a Catholic university is about. We're about integrating the disciplines and putting it all in context. So my understanding of Catholic universities is that they have this unique role to play integrating faith and reason and integrating the disciplines.
Tuesday, March 29, 2022
[In response to some thoughts I had posted about interesting developments in law and religion in Australia, Professor Joel Harrison had these illuminating observations, which he has given me permission to post. MOD]
In his blog post, Professor DeGirolami raises a possible emerging ‘Australian School’ – Australian-based scholars who are interested in Christian theological concerns and justifying religious freedom in light of this. Professor DeGirolami’s post spurred a few initial thoughts in response; I’m grateful he invited me to share them here.
First, although developing a theological jurisprudence is certainly not something unique to scholars in one place, is there something about Australia that may allow this to grow? One possible angle for reflection is on a ‘trans-Atlantic’ difference, and its continuing relevance to Australia.
The trans-Atlantic difference puts me in mind of the theologians Stanley Hauerwas and John Milbank. Hauerwas the American is anti-Constantinian and sees the violence of the State as the primary thing to resist. Separation is necessary to maintain a prophetic difference – or even just survival of the Church as the Church. Although much indebted to Hauerwas, Milbank the Brit understands Christendom and Christianity as coterminous – Christianity means (complexly) instantiating a political-spiritual project. More broadly, and as generalisation, the boundaries of church and State discourse or what is a matter for theology and what is a matter for law are more blurred on one side of the Atlantic.
Of course, Australia is not either country. It is a former colony and still part of the Commonwealth, but it also has a strong United States-flavour. Constitutionally it is sometimes described as having a ‘Washminster’ system, with its blending of federalism and responsible government. Culturally and politically, it can swing between looking to one country or the other.
That said, I wonder whether it is still possible to have more of a ‘British’ sensibility in Australia and talk about cooperative arrangements between church and State, or even develop public debate in theological terms. We can add to this an ongoing relationship to First Peoples, who are partly recognised at State and federal level as maintaining a spiritual or metaphysical connection with the land, as judges of the High Court of Australia recently stated. Although Australia was not permitted to have an established church, this requirement was not opposed to a religiously infused culture and politics. That is not entirely dissimilar from the United States, but Australia perhaps historically went further – maintaining something of that British inheritance in a colonial context. To this day, for example, despite some voices in Australia saying otherwise, it is very difficult to claim a ‘Rawlsian consensus’ of public reason or even that this is something of significant debate.
Second, this growth in theological concern takes place against an emerging culture war dynamic. Recent years in Australia have seen a remarkable shift. Matters that were previously uncontroversial – like a Catholic, Jewish, or Muslim school’s liberty to hire only members of the religious tradition – are now challenged. It is not difficult to find outright hostility to religious groups or at least non-comprehension. (In one example, an Australian rights group argued the State needed to protect nuns from the Catholic Church, which was infringing their right to private and family life.) This takes place against the backdrop of numerous parliamentary inquiries into religious liberty. Different lobby groups on both sides have sprung-up. With each new inquiry they have escalated their rhetoric, stating the opposing side poses an existential threat that demands immediate action (and presumably more funding and support). In this context, the turn to theological frames (often a version of postliberalism) can reflect an interest in finding resources beyond the culture war.
It serves a critical function and a productive function.
Critically, the turn to theology helps to unmask any continuing claims to neutrality. Most notably in the context of religious liberty debates, it helps us to understand how the appeal to autonomy as promoted within liberal frames is not divorced from a theological view – what it means to be free and how this understanding came to be, what the role of civil authority is in relation to this. A theological turn offers insight into our current context: different groups engaging in an agonistic discourse of incommensurable claims to liberty.
Productively then, the turn to theology looks for an alternative. Thus, we see language of the common good, duty, virtue, solidarity, peace, and charity developed in aid of asking what the shape of a complex, good society should be.
This raises a final important point that I think should shape any apparent ‘school’ interested in theological jurisprudence. Often religious liberty claims are framed as simply protecting a particular community’s own backyard: my liberty, my autonomy, my freedom from x. However, this turn to theology aims at something more – contemplating the future of our shared life. This is not a question simply for Australian-based scholars, of course. But I’m certainly glad we splendidly named ‘young upstarts’ can make a contribution (and await criticism).
Sunday, March 27, 2022
There's a new issue of the Journal of Law & Religion available to read online for free, and it includes an intriguing article by friend of MoJ Mark Movsesian, "Law, Religion, and the COVID-19 Crisis." From the abstract:
As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the United States specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID-19 crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-century pandemic.
I'm back from a superb conference orchestrated by Professor Helen Alvaré at the Liberty & Law Center at George Mason Law School on some of the current and future challenges and prospects in law and religion. I'll have more to say about my paper, "The New Disestablishments," by and by, but for the present I will note that I was grateful for improving and insightful criticisms from the group, including those of Professor Fred Gedicks, who was my commenter.
One of the things that occurred to me at the conference was that it seems a new school of thought about religious liberty is emerging in some young upstart scholars, in Australia. I'm only just coming to learn of The Australia School, and so I am going to miss what are new and interesting scholars in it. Indeed, calling it The Australia School assumes some kind of unity of thought, and I am certainly not suggesting there is such unity. But at the very least, The Australia School will include scholars like Professor Joel Harrison and his Post-Liberal Religious Liberty: Forming Communities of Charity; Professor Alex Deagon (who presented at the conference) and his From Violence to Peace: Theology, Law and Community; and Professor Neil Foster, who has written about when it is and is not appropriate for courts to decide matters that impinge on religious doctrine. I am missing many, I'm sure (and apologize preemptively to those I have not discussed). I don't want to overgeneralize, but this is a blog post, and it would be boring not to offer at least some thematic observations about The Australia School. So are there any discernible themes?
Both Harrison and Deagon are deeply interested in Christian theological concerns, and both offer justifications for religious freedom rooted in theological considerations. Both rely on the work of John Milbank--not identically, but substantially. Indeed, I have a review over here of Harrison's book, trying in summary form to describe the way Harrison reimagines religious freedom and devises justifications for it that are new and represent a different direction (with words of praise, though there was a criticism or two also!). Foster also is interested in the issue of the relationship of religious doctrine to civil power. And Deagon emphasizes issues of the unity of peaceful co-existence, also through a theological lens. Both the influence of Milbank on these scholars and their theological orientation are notable; I can discern only very few similarly oriented projects over in our corner of the world. One question I've been thinking about is just why.
As I say, I'm just learning about The Australia School and there are likely many differences and disagreements already emerging within it. But it's a fresh and interesting development in the law and religion world.