This story reports on the arrival in Washington, D.C. of a new museum, the "Museum of the Bible," whose collection will include "pieces of the Dead Sea Scrolls, a Gilgamesh tablet, Elvis Presley’s Bible and about 850 manuscripts, 12 of which are in Hebrew and come from China’s Jewish population. A third of the material may be considered Judaica, related to Judaism and the Old Testament, including torahs that survived the Spanish inquisition and the Nazis."
Notwithstanding this scattershot miscellany, the story seems determined to find a controversial separationist church-state angle. It reports that the museum is the creature of Hobby Lobby President Steve Green and that its proposed location near the Mall might well overshadow a downtown skyline that is "dominated by monuments to men." Objections to the museum appear to combine the aesthetic, the religious, and the ideological: e.g., "To many in the scholarly community, the museum seems like an oversize piece of evangelical claptrap"; "The museum will be a living, breathing testament to how American evangelicalism can at once claim it is under siege from secularists, the LGBT rights movement, or feminism — yet also boast of acquiring a prime private perch, strategically located at the nation’s epicenter of law and politics.”
But perhaps all of this is too much fuss over a development that secular critics of the museum might 
welcome. Artifacts that get their own museums are often on their way out culturally. Museums generally involve subjects and events that are in some way closed affairs--affairs to be studied and reflected on retrospectively. Proust recognized as much when he spoke of the movement to turn French cathedrals into museums in the early 20th century, which he pronounced "the death of the Cathedral." "Once a church is decommissioned it dies, and though as an historical monument it may be protected from scandalous uses, it is no more than a museum."
As for the American religion that needs defending against the assaults of the likes of the museum, that's nearly perfectly summarized in the first paragraph of the story (though the final word "instead" seems out of place):
In Washington, separation of church and state isn’t just a principle of governance, it’s an architectural and geographic rule as well. Pierre L’Enfant envisioned a national church on Eighth Street. A patent office was built on the site instead.
FURTHER NOTE: My colleague, Mark Movsesian, had this comment: "The Museum of Biblical Art, a lovely, small museum in New York, sponsored by the American Bible Society, was forced to close this summer, notwithstanding some excellent exhibits, including one on Donatello. One big problem the museum had, according to Slate, was the “pesky aroma of Christianity,” which apparently put off New York art lovers."
Tuesday, August 25, 2015
The Center for Law and Religion at St. John’s Law School is pleased to announce its third 
biennial Colloquium in Law and Religion, scheduled for Spring 2016. This seminar invites leading law and religion scholars to make presentations to a small audience of students and faculty.
The following speakers have confirmed:
February 1: Brett G. Scharffs (Brigham Young University School of Law)
February 16: Robin Fretwell Wilson (University of Illinois School of Law)
February 29: Robert P. George (Princeton University)
March 14: Mark Tushnet (Harvard Law School)
April 4: Justice Samuel A. Alito (United States Supreme Court)
April 18: Elizabeth H. Prodromou (Boston University & Tufts University Fletcher School of Diplomacy)
Topics will be announced at a future date.
For more information or if you would like to attend the sessions, please contact the colloquium’s organizers, Marc DeGirolami ([email protected]) and Mark Movsesian ([email protected]). For information about past colloquia, please click here, Spring 2012, and here, Spring 2014 (hosted with Villanova Law School).
Monday, August 17, 2015
I've been reading Tocqueville's L'Ancien Régime et la Révolution, a work that discusses the several causes of the French Revolution and one of whose basic themes is that the legal and political reforms following the Revolution were actually already in place in the late stages of the ancien régime. After the distempers of the Revolution subsided, those same governmental reforms and ways of conducting state business returned.
In fact it was the reforms that hastened on the Revolution. The anger and dissatisfaction of the people became unbearable not because equality was in decline or at its lowest ebb before the Revolution, but because it was rising. The point is about the political psychology of equality, and, allowing for changed circumstances, it isn't applicable only to pre-revolutionary states but can be seen to operate in many contexts. The more people believe themselves to be equal to one another in every respect, the less inequalities of any respect become tolerable. From Chapter XVI ("That the Reign of Louis XVI Was the Most Prosperous Era Of the Old Monarchy, and How That Prosperity Hastened the Revolution"):
Revolutions are not always brought about by a decline from bad to worse. Nations that have endured patiently and almost unconsciously the most overwhelming oppression, often burst into rebellion against the yoke the moment it begins to grow lighter. The regime which is destroyed by a revolution is almost always an improvement over its predecessor, and experience teaches that the most critical moment for bad governments is the one which witnesses their first steps toward reform. A sovereign who seeks to relieve his subjects after long periods of oppression is lost, unless he be a man of great genius. Evils which are patiently endured when they seem inevitable become intolerable when once the idea of escape from them is suggested. The very redress of grievances throws new light on those which are left untouched, and throws fresh poignancy to their smart: if the pain be less, the patient’s sensibility is greater. Never had the feudal system seemed so hateful to the French as at the moment of its proximate destruction….
No one in 1780 had any idea that France was on the decline; on the contrary, there seemed to be no bounds to its progress. It was then that the theory of the continual and indefinite perfectibility of man took its rise. Twenty years before, nothing was hoped from the future; in 1780, nothing was feared. Imagination anticipated a coming era of unheard of felicity, diverted attention from present blessings, and concentrated it upon novelties.
Sunday, August 9, 2015
Here's an insightful post by Paul Horwitz on the Garnett, Inazu, McConnell essay. Paul introduces the post with a discussion about contemporary attitudes toward government's "insist[ence] that private organizations comply with its own sense of the good," and he claims that though many people continue to believe that such insistence is illegitimate, "the momentum" within the elite classes (or call them how you will) "is on the other side." I am always pleased when Paul shares at least some of my sensibilities.
One more thought connected to Paul's comment on these interesting matters. Tax exemption for private nonprofit organizations made a certain amount of sense when two conditions obtained: (1) the size of government, and the scope of its role in American social life, were a good deal smaller than they are today, thereby both necessitating and making space for the involvement of private nonprofit institutions for the support of civil society; and (2) the view that these private institutions could and should play an independent role in shaping civil society in accordance with their own senses of the political and moral good, senses that might diverge in important respects from the state's.
The conditions are mutually reinforcing and mutually dependent. As government becomes larger, both the need and the space for private institutions shrinks as does the perception that private institutions might actually have something of value to say in the way civic formation that is very different from what the state says. The "need" question is complex, because the breakdown of condition #1 would not necessarily mean that we would see fewer private institutions performing the sort of work that they had performed in the past. Indeed, the increase in the size and scope of the government's role might itself necessitate greater numbers of private institutions to help it fulfill its enlarged offices. But we should expect to see a sharp decline in private institutions engaged in civic formation whose values differed sharply from the government's. Whatever public/private arrangements endured after the fall of condition #1 could not continue to operate under the premises of condition #2. One might say that this is to be expected--indeed, it might be said to validate a hoary separationist rallying cry: if private institutions want to be in the business of performing civic functions, they ought to expect pressure to conform to the government's preferred views of the civic, political, and moral good. (A footnote: I’m always struck by how decidedly Protestant the theology supporting these kinds of separationist arguments seems.) All true, though one could offer in return that such increased pressure is not inevitable but the product of a historical contingency: the breakdown of the two conditions above.
Wednesday, August 5, 2015
Those familiar with some of the schools of constitutional interpretation will know what is commonly called the intratextualist or structuralist method of divining meaning. The idea is to understand the meaning of a word or phrase by searching out and comparing like words or phrases in the same document in order to arrive at a unified meaning. There is a kind of horse-sense fundamental principle sitting somewhere beneath the method: words used at different points in the same document ought to mean the same thing throughout the document, and variations on word usage ought to be understood as signifying difference of meaning. The meaning of the words in the document should render the document a coherent whole. The several usages of “necessary” in the Constitution, for example, are useful in teaching the virtues and vices of intratextualism.
But intratextualism is not just for constitutions. It is a more general approach to extracting meaning from text. Here’s an interesting passage from Robert Louis Wilken’s The First Thousand Years: A Global History of Christianity that describes early developments in Christian interpretation of the Old Testament. This is from the chapter on the great Origen of Alexandria (p.62):
Origen was to spend the rest of his life in Caesarea, and his most mature works were written there, including many of his biblical commentaries. He was the first Christian to write scholarly commentaries on books of the Old Testament, such as Genesis and Psalms, as well as on the New Testament, including the Gospel of John and the Epistles of Paul. Two features stand out in his commentaries: a deep respect, even reverence, for the words of the text, and the conviction that a spiritual meaning could be drawn from every passage of the Bible.
Consider his interpretation of the following passage from the book of Deuteronomy, for example: “If you walk in my statutes and observe my commandments and do them, then I will give you your rains in their season, and the land shall yield its increase, and the trees of the field shall yield their fruit.” (Deuteronomy 11:13-17). Origen begins by putting questions to the text. If “rain” is given as a reward for those who keep the commandments, how does one explain that this same rain is given to those who do not keep the commandments, and “the whole world profits from the common rains given by God”? This leads him to propose that the term “rain” can have another sense than water from the heavens, because in this passage it seems to refer to something that is given only to those who walk in God’s statutes and observe the divine law. It signifies something given “only to the saints.”
With the puzzling use of the term “rain” in the passage as a starting point, Origen proceeds to examine the term “rain” elsewhere in the Scriptures and discovers that it is sometimes used in a metaphorical sense. Moses, for example, said, “May my teaching drop as the rain, my speech distill as the dew” (Deuteronomy 32:1-2). In this passage rain is a metaphor for Moses’s words, and hence of the word of God. That is to say, in the Scriptures “rain” can have another meaning than the plain sense.
Tuesday, August 4, 2015
A very interesting comment authored jointly by Rick, John Inazu, and Michael McConnell on the recently introduced First Amendment Defense Act [UPDATE: I see Tom got there first below, so I've stricken the excerpted bit in this post.]
One thought that has occurred to me on the issue of "tax exemption" of nonprofit institutions is that the entire discussion seems askew. It generally begins from the premise that the government can and should be able to tax anyone and anything that it pleases. The tax base is limitless. Amenability to taxation, however, ought not to be the default posture, as if the government simply gets to decide at its pleasure and election whom and what it wishes to tax. Income taxation only follows from the fact of income generation, and though nonprofits generate income they do not distribute it to individuals for private use but spend it in ways that promote public functions and purposes. Nonprofit actors are not appropriate objects of this kind of taxation at all. Consider, for example, the way in which the Connecticut Supreme Court in an 1899 decision discussed Yale University's tax exempt status (not an income tax decision, of course):
The non-taxation of public buildings is not the exception but the rule. The corporations, whether municipal or private, which own and are by law charged with the maintenance of such untaxed buildings, are not the recipients of special privileges, in any sense obnoxious to the law. The seats of government, State or municipal, highways, parks, churches, public school-houses, colleges, have never been within the range of taxation; they cannot be exceptions from a rule in which they were never included.
Yale University v. Town of New Haven, 42 A. 87, 91 (1899). These institutions are, as the authors of the piece put it, actors within "civil society" that should in general not be touched by the government's taxing power. Moreover, a government decision not to tax is emphatically not the same as a government decision to grant money or subsidize. We use the language of "exemption" when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government's power to tax.
[Further update: I've amended some things in the post for clarity.]
Monday, July 27, 2015
Congratulations to Tom and St. Thomas's religious liberty clinic on the decision from North Carolina. Tom writes below that "the plaintiffs' problem on the religion question was that there was no North Carolina anti-establishment provision restricting government support of religious schools ("sectarian schools," as other states call them)."
I have a short essay discussing, in part, a recent case from a state with just such a clause--Colorado--whose supreme court rejected a voucher program on the ground that any aid--direct or indirect--would violate the clause. Just a small quibble: I do not think that such clauses are rightly characterized as "anti-establishment provisions." They are something quite different. I use the essay to reflect more broadly about what they are, what purpose they serve and were intended to serve historically, and broader questions that they raise about claims of "religious neutrality" by the state toward matters educational--public or private.
