A draft of a short paper for a recent symposium at Notre Dame Law School. Here's the abstract:
A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. Religious mysteries tend to designate the unfathomable matters of religion, those that the merely human mind cannot grasp.
In this short paper, I suggest that “mysterizing” religion may change the stakes in some of the most controversial conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above—to press the view that a certain subject or phenomenon is not merely unknown, but unknowable by human beings. That is what I propose to do for religion in American law, and what may well alter the landscape of the conflicts between advocates of religious liberty and the forces opposing it. Fortunately, I have had some help. The mysterization of religion seems already to be well under way in American constitutional law. It is a central feature of the Supreme Court’s current conception of religion.
The specific context I consider concerns the question whether the government may make public funds available to private religious schools—either directly or through mechanisms of independent, private choice—on condition that the schools accept and implement nondiscrimination rules regarding the sexual identity or conduct of their students and faculty. The mysterization of religion probably alters the legal landscape by rendering the claim that conditions concerning the admission or hiring of LGBTQ persons interfere with religious free exercise stronger than it otherwise would be. And the argument for mysterization itself derives strength from the Supreme Court’s own conception of religion as ineffable, unintelligible, and unevaluable, as well as from the Court’s recent ministerial exception cases.
I conclude by briefly reflecting on what the mysterization of religion may mean more generally for law and religion. It is not all good news for religion. In fact, upon closer inspection, it turns out that mystery in traditional religions, conceptualized as a partial, incomplete, or imperfect apprehension of the transcendent, is quite different than mystery in the contemporary legal understanding of religion as psychological, interior, personal unfathomability. Almost its opposite.
Sunday, December 4, 2022
From Book II.1 of the Metaphysics:
"The investigation of the truth is in one way hard, in another easy. An indication of this is found in the fact that no one is able to attain the truth adequately, while, on the other hand, we do not collectively fail, but every one says something true about the nature of things, and while individually we contribute little or nothing to the truth, by the union of all a considerable amount is amassed. Therefore, since the truth seems to be like the proverbial door, which no one can fail to hit, in this respect it must be easy, but the fact that we can have a whole truth and not the particular part we aim at shows the difficulty of it.
Perhaps, too, as difficulties are of two kinds, the cause of the present difficulty is not in the facts but in us. For as the eyes of bats are to the blaze of day, so is the reason in our soul to the things which are by nature most evident of all.
It is just that we should be grateful, not only to those with whose views we may agree, but also to those who have expressed more superficial views; for these also contributed something, by developing before us the powers of thought. It is true that if there had been no Timotheus we should have been without much of our lyric poetry; but if there had been no Phrynis there would have been no Timotheus. The same holds good of those who have expressed views about the truth; for from some thinkers we have inherited certain opinions, while the others have been responsible for the appearance of the former."
Friday, December 2, 2022
Excellent news out of Oklahoma:
In an official legal opinion, Oklahoma Attorney General John O’Connor says a state law that prohibits religious entities from operating a public charter school likely violates the First Amendment to the U.S. Constitution and “therefore should not be enforced,” based on rulings from both the U.S. Supreme Court and the Oklahoma Supreme Court.
AG O'Connor's opinion is sound, and rock-solid (and not simply because he has the good judgment to cite Nicole Stelle Garnett)
The opinion concludes:
Based on state court rulings, the attorney general’s opinion declared that allowing religiously affiliated participants to provide educational services to children by entering into a written agreement with a charter school “would not violate the Oklahoma Constitution” because “charter schools are entirely optional for parents” and “allowing the religious or religiously affiliated to participate would make the system neutral rather than hostile to religion.”
“The State cannot enlist private organizations to ‘promote a diversity of educational choices,’ … and then decide that any and every kind of religion is the wrong kind of diversity,” the opinion stated. “This is not how the First Amendment works.”
It has taken many years, but the correction in the Supreme Court's First Amendment doctrine relating to cooperation between governments and religious schools is both striking and welcome. Contrary to what one reads in the typical Court-watching-journalist's commentary, the version of "strict separation" that is so often treated as canonical was a weird, ahistorical, and unwise blip, that distorted education-reform policy for a few decades but that has no basis in American history and practice and that -- thankfully -- has been, step-by-step, dismantled since the mid-1980s.
