I've posted on SSRN a draft book review, forthcoming in the Texas Law Review, of the new book by Chris Eisgruber (provost at Princeton) and Lawrence Sager (dean at Texas), Religious Freedom and the Constitution -- a book that I think is quite impressive even though mistaken in several ways. From the review abstract:
Eisgruber and Sager are the most sophisticated proponents of an approach to the Religion Clauses that emphasizes equality and nondiscrimination as opposed to any distinctive substantive liberty or autonomy in religious matters. . . . The book is commendable because, among other things, it confronts the central problem for an equality-based theory of religious rights: how to square it with the special treatment of religion reflected in a good deal of constitutional case law, in widely held intuitions, and in the very fact that the First Amendment contains two clauses singling out religion for concern - one of which, the Free Exercise Clause, speaks by its terms of freedom rather than equality.
This essay argues, however, that Eisgruber and Sager fail to show that special treatment of religion can be explained as nondiscrimination without reference to religious autonomy. Thus, although their theory generates many normatively attractive results - offering, for example, a rationale for potentially strong protection of free exercise rights - they can only generate them by surrendering a focus on equality and nondiscrimination. I first argue that Eisgruber and Sager cannot give religious liberty the robust protection they claim without giving it more protection than some deeply felt nonreligious reasons for acting, and without showing some special concern for religious autonomy. I next turn to the special limits that Eisgruber and Sager reaffirm on government assistance to religion - especially government expression of religious sentiments - and conclude that Eisgruber and Sager cannot defend these special Establishment Clause limits and still object to giving exemptions to religious exercise but not secular beliefs. Finally, I discuss the primary alternative to an equality-based theory - the principle that government should respect and promote the choices of individuals and groups in religious matters - and present a brief case for it, both affirmatively and in response to Eisgruber and Sager's criticisms.
Richard Neuhaus, writing in December's First Things, did not like the recent University of St. Thomas Law Journal symposium (papers here) on "the future of pro-life progressivism." (His written squib did not appear in the online archives for several weeks, so I'm just reacting to it now.) I'm not surprised that he'd criticize the concept of progressivism reflected in several of the papers on war, economics, poverty, etc. There are of course legitimate debates over all those issues. But his critical characterization includes at least one flatly false statement, one puzzling one, and what seems to me an unfair assumption.
The false statement comes in this complaint about the symposium :
As for the poor of the world, John Paul II’s encyclical Centesimus Annus is rich in proposals for helping the poor enter into the circle of productivity of exchange. But Centesimus Annus rates barely a mention, and then only to complain about the way it has been hijacked by conservatives.
Well ... no. Even a glance at the issue's table of contents shows the article by the Acton Institute's Kevin Schmiesing, "Another Social Justice Tradition: Catholic Conservatives," which highlights and quotes what I expect is one of Fr. Neuhaus's favorite passages from Centesimus Annus(CA): "The pope approves of that capitalism 'which recognizes the fundamental and positive role of business, the market, private property, and the resulting responsibility for the means of production, as well as free human creativity in the economic sector.'" (Schmiesing's article recently got recognition from a market-oriented think tank, even if not from Fr. Neuhaus.) Then there's Helen Alvare's paper quoting CA's passages on the importance of "know how" and education, which surely rank among those empowerment proposals to which Fr. Neuhaus refers. Alvare argues that the traditional family structure bolsters education and achievement, an argument that I expect Fr. Neuhaus would have endorsed had he happened upon it while flipping through the symposium pages.
Fr. Neuhaus's false suggestion that the symposium participants all sounded one note seems to reveal the assumptions he brings to these issues. His squib makes many assertions about how the liberal participants all believe they "care more about other people" than conservatives do, that they all claim "moral superiority," display "moral smugness." He quotes nothing to support applying these familiar complaints about liberals to this case; and that, combined with his tenuous grasp of the actual content of the articles (see above), leaves me the impression that he's operating mostly on a priori assumptions about how we know liberals always act. I don't deny for a minute that people on the left can be morally smug, as can we all. But asserting that in a specific case without specific evidence -- asserting it simply, it appears, because somebody argues for left-ish positions on war or the economy -- is no better than being a morally smug liberal. Either position simply shuts down legitimate argument about, e.g., when war is moral or what steps, by civil society and the state, are needed to empower the poor. The line between moral smugness and admirable moral energy is not a bright one -- haven't traditionalists often had their moral energy tarred as smugness? -- and so the charge of smugness shouldn't be thrown around too casually.
The puzzling statement is Fr. Neuhaus's complaint that examining this issue "assum[es]that 'Pro-Life Progressivism' will strike most people as something of an oxymoron" when in fact "few things, if anything, are so clearly required by social justice than that a society not kill its babies." I'm not clear why this is a criticism, since the very claim of the pro-life progressive or consistent-life position is that it is not oxymoronic, but entirely consistent, to see abortion as a fundamental issue of justice for the most vulnerable. That combining such opposition to abortion with an emphasis on protecting the vulnerable in other circumstances strikes a significant number of people as an oxymoron seems to me a simple fact of public opinion. One can and should criticize the belief, but I don't see the point in denying its existence.
The unstated issue here, I suspect, is the continuing debate about whether locating abortion in the context of other issues of life and vulnerability -- like war, the death penalty, or poverty -- is more likely to submerge it in those issues or instead, as the consistent-life people claim, increase the long-term credibility of the pro-life movement. Participants in the symposium took varying positions on those questions (compare, e.g., the papers by the USCCB's John Carr, Notre Dame's John O'Callaghan, and our own Mark Sargent at the symposium link above). That debate is important, as is the debate about what policies will serve to protect and empower the vulnerable in various contexts. But it's unhelpful to dismiss the issue or shut down the debate with pronouncements that the other side is morally smug.
Thanks to Rob for posting about Alan Wolfe's brief for Boston College-type schools over Wheaton-type schools. Isn't there a contradiction on the face of the argument?
[B]oth BC and Brandeis recognize that in today's world, religion has gone from being an ascribed status to an achieved one; more and more Americans choose their religious identity rather than having it chosen for them.
In today's world, religious diversity is a fact of life, and the only choice for a college or university grounded in one faith is to open its doors to others.
Let's see. (1) Students should be able to "choose their religious identity rather than having it chosen for them." (2) But the "only choice" that should be available as a model for religious engagement and formation at a college is the diversity-of-faiths model, not the communal-faith model. (3) So (it seems to follow) students should have the diversity-of-faiths model of religious identity formation "chosen for them." 3 contradicts 1.
(To anticipate the counterarguments: It seems clear to me that the diversity-of-faiths campus and the communal-faith campus are, indeed, themselves competing models of religious identity and formation, with real, differing effects on that formation. One may be better kind of identity than the other (as Wolfe argues), but that's a different question from whether there is a choice among identities. And under the communal-faith model, students still make a choice of identities -- to seek the communal one by attending such a college in the first place. I've made a similar argument here that the relevant categorizations of American religious identity include not only "Catholic vs. Protestant vs. Jew vs. Muslim etc.," but also "assimiliated faiths vs. sectarian faiths.")
As Friday's opening approaches for the movie Amazing Grace, on William Wilberforce and the British evangelical movement to abolish the slave trade, Christianity Todayeditorializes on the lessons of that movement. Among other things,
we should not worry about "diluting" any political clout we might have by engaging a variety of issues. Wilberforce and his circle did not conceive their political duty narrowly. They eagerly sought to reform society on a number of fronts. They are remembered best for their antislavery work, but they also founded the Society for the Prevention of Cruelty to Animals and the Church Missionary Society, promoted prison reform, and sponsored charity schools, while encouraging George III to step up enforcement of existing laws against vagrancy, blasphemy, drunkenness, and profaning the Sabbath.
Among other things, taking on more than one issue builds up "moral capital" transferable from one issue to another -- as long as one avoids "arrogance and silliness" in embracing positions that dissipate that capital.
How do we apply the lessons today to questions about whether the Church and other Christian bodies take on too many issues, or not enough?
Larry Solum's short paper (posted by Rob) defending judicial formalism as a corollary of public legal reason is interesting and helpful. I appreciate his distinction between the exclusion of comprehensive moral/theological arguments from judicial opinions and from political/legislative debate; for the reasons he notes, the arguments for exclusion are much stronger as to judicial opinions.
I have a question, with apologies if Professor Solum has answered it elsewhere. Among his lexically-ordered set of formalist principles of constitutional interpretation -- beginning with the text and ending with "default rules" such as "minimize judicial discretion and maxmize predictability" -- suppose that in a given case, the crucial level of analysis itself reflects a comprehensive moral or theological conception that would otherwise be excluded under a formalist approach? The most likely such instance would be original meaning, and for subject matter let's take the Religion Clauses, where I believe that this is a very live question.
Suppose we conclude for some current Religion Clause question that precedent, plain meaning, and overall textual structure give no clear answer, so that we must move to the next principle, original meaning. And suppose we conclude that the original meaning embodies, and cannot be stated without setting forth, one or more theological affirmations: for example, that God exists, that following God is the most important calling of human beings, but that such following must always be voluntary. This is essentially the conclusion of works like Steve Smith's excellent The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. Pa L. Rev. 149 (1991); the conclusion can of course be challenged, but assume it for purposes of argument. (Although original meaning might in many cases be found from sources, such as dictionaries, more prosaic than arguments of theology, it may also be -- and let's assume -- that we cannot explicate how words such as "free exercise of religion" or "establishment of religion" were used in 1791 without setting forth and directly applying the theological understandings that underlay them.)
If original meaning necessarily embodied and required application of such a comprehensive (theological) conception, should the judicial formalist apply that principle notwithstanding its comprehensive nature? A number of scholars essentially say that this conception, even if embodied in and necessary to the original meaning, cannot ground constitutional interpretation in today's religiously pluralistic society because it is too "partial," i.e. it fails the test of public reason in the Rawlsian sense. But what is left after original meaning if, by hypothesis, prior levels of formalist analysis, such as precedent and plain meaning, have also proven insufficient? (What in fact has happened in the Religion Clause instance is that scholars, and the Supreme Court, have turned to constructing their own theories based on "the best understanding of religion in modern society" or similar criteria (which may or may not satisfy the test of Rawlsian public reason but which are certainly controversial and widely disputed).) Compared with such efforts, is it preferable to stick to original meaning even if explicating that meaning requires explicitly setting forth and applying a theological or other comprehensive conception?
Mike Jones, the former male prostitute involved with former National Association of Evangelicals leader Ted Haggard, recently visited Haggard's former church in Colorado Springs and apparently received a welcoming response. Christianity Today 's weblog reports that
Associate pastor Rob Brendle was apparently one of those who thanked him. "I told Mike, 'I don't want to impose my religious beliefs on you, but I believe God used you to correct us, and I appreciate that,'" he said. "The church's response to him was overwhelmingly warm. One of the wonderful and enduring truths of Christianity is to love people the world sets up to be your enemies."
He didn't say "love your enemies," which was a nice touch.
Well, it's good in this case that the church members didn't look on him as an enemy. But isn't "love the people the world sets up to be your enemies" somewhat less radical -- and therefore less "wonderful" -- than what Jesus actually said in the Gospels?
In the new issue of Books and Culture, Alan Jacobs catalogs some recent "howlers" -- laughably uninformed or at best simple-minded statements about evangelicals and other Christians -- made by reviewers who are oh-so-concerned about those uninformed, simple-minded evangelicals. He includes quotes from Richard Dawkins, Sam Harris, cognitive scientist Steven Pinker, and this one from biologist Lee Silver, in his book Challenging Nature: "American Christian evangelicals . . . believe that God in the form of Jesus Christ will grant them an eternal afterlife only if they work sufficiently hard to persuade non-Christians to become evangelicals themselves." (Umm, no; whatever you think about preaching to seek conversions, evangelicals -- whose theological cornerstone is justification by faith -- don't teach or believe that their salvation turns on such work.)
Jacobs offers responses to these and concludes:
The first noteable atheists and agnostics, the nineteenth-century critics of Christianity in England and America, were raised in largely Christian cultures and knew, often in considerable detail, the contours of the faith they were opposing. This made them more forceful arguers and more effective debaters, even if it also made them more vulnerable to the power and beauty of the Christian message. . . .
But today's polemical skeptics not only lack adequate knowledge of Christianity or of other religions, they're apparently unaware that such knowledge would be to their advantage. . . . Largely or wholly innocent of religious culture, religious language, and religious belief, they make their confident pronouncements and wonder why, for all the articles and books they're selling, the world seems to be getting more religious rather than less.
Back from a blogging hiatus, occasioned by, along with writing commitments, having simultaneously to hire faculty for our law school and a new rector for our (Episcopal) parish. You lucky folks don't have to worry about the latter for your parishes (wink).
Rick has a great list of subjects for his course. To follow up on Michael's post about the death penalty, I was wondering why there's not a subject heading about the tradition's emphasis on protection of human life. Also following up on Michael's mention of development of doctrine, that would be a great subject, even though it's methodological rather than first-order substantive. It's very accessible for a methodological topic, because a lot of people's beliefs about individual subjects are affected by a gut sense of whether and in what ways having the Church adapt to new circumstances is a good idea. Plus there are engaging case studies past as well as current. Spending a little time on a historical subject like slavery or usury can free students from total immersion in, and give them some perspective on, the currently debated topics.
Two concepts that are organizing themes for recent encyclicals are work ("the key to the social question") and development. They could be dealt with extensively under the markets and internationalism headings.
A while back I asked (based on only slight knowledge on the subject) whether Benedict was accurate in his assertions about Islam at its essence viewing God as above reason etc. Now a group of Islamic scholars have written to the Pope "applaud[ing] your efforts to oppose the dominance of positivism and materialism in human life, [but listing] some errors in the way you mentioned Islam as a counterpoint to the proper use of reason, as well as some mistakes in the assertions you put forward in support of your argument." Here is substantive debate about what Benedict might really have gotten right and wrong concerning Islam -- or at least its theologically richest forms -- as opposed to the unfortunate sideshow about his passing reference to the Byzantine Emperor's comment on Mohammed. (Note you click on the arrows alongside the text to move ahead or back a page. Thanks to my colleague Teresa Collett for passing the letter on.)
From Christianity Today. An interesting subject in its own right, but perhaps also a Rorschach test for whether one is (on questions of the costs and benefits of central institutional authority) a Protestant or a Catholic.
For years, Western pundits have proclaimed the need for a "Muslim Martin Luther" who could reform Islam. Actually, the pundits' description of what this reformer would do suggest that they're more interested in a Muslim John Shelby Spong than a Luther: someone who would dismiss the Qur'an as unscientific silliness and bring Islam in line with Enlightenment values.
The Muslim outrage over Pope Benedict XVI's comments now has some pundits saying that what Islam needs is not a Luther, but a pope of its own.
The interesting quotations to me are from Jonah Goldberg (who says that a strong institutional leader can "have the 'worldliness' to value flexibility and tolerance, and the moral and theological authority to clamp down on those who see compromise as heresy"), and Southern Baptist Al Mohler (who says the Regensburg dustup shows that because of the pope's institutional position "[his] comments -- whether for good or for ill -- are given a prominence that is unbiblical and dangerous").
