I've posted on SSRN a paper that I did for a wonderful conference, last Fall, at the University of San Diego's Institute for Law and Religion. on "The Freedom of Church." I've been thinking, for several years now (starting, probably, with this article), about the (very old) idea of the "freedom of the church" -- its content, its justifications, its contemporary relevance, etc. Others -- including Michael Moreland, Patrick Brennan, Tom Berg, Steven Smith, etc. -- have, too (and better). Anyway, the paper is called "'The Freedom of the Church': (Towards) an Exposition, Translation, and Defense." Here is the abstract:
This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.
The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
As Legal Theory king Larry Solum would say, "download it while it's 'hot'".
Adding to the recent pieces at Commonweal by Michael Perry and me commenting on the Windsor and Perry decisions is Marc's excellent essay, "Why Standing Matters" (and, it does). Here is a taste:
The Supreme Court wields its power within the constitutional structure only as long as it also retains a firm sense of the limits of that power. When it exceeds those limits, it disrupts the constitutional order and threatens its own authority. As always, Tocqueville saw this clearly: The political power which the Americans have intrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone. If the judge had been empowered to contest the laws on the ground of theoretical generalities, if he had been enabled to open an attack or to pass a censure on the legislator, he would have played a prominent part in the political sphere; and as the champion or the antagonist of a party, he would have arrayed the hostile passions of the nation in the conflict. Or, as Justice Antonin Scalia put it in his dissent in the DOMA case, a free-floating power to say what the law is would be “an assertion of judicial supremacy over the people’s representatives in Congress and the executive”—an unsustainable exercise of judicial force that risks destroying the constitutional separation of powers. - See more at: http://www.commonwealmagazine.org/why-standing-matters#sthash.1NvZ6LCb.dpuf
I'm a bit late posting this -- I had meant to earlier in the month, in the context of the Fortnight for Freedom -- but I think it's still worth reading. Thomas Howard discusses, in "July 4, July 14, and the Religious Question" the important distinction between (a) the American Revolution and the "positive secularism" it produced and (b) the French Revolution and the "aggressive secularism" it brought about.
The discussion echoes, of course, our Pope Emeritus's frequent discussions of (and praise for) "healthy secularity" (which I discuss here and elsewhere).
Here, at Public Discourse, is a shorter version of a paper I shared at a recent conference, sponsored by the Notre Dame Program on Church, State, and Society, dedicated to exploring and celebrating the work of Prof. Mary Ann Glendon. Here is a bit:
[C]onstitutionalism depends for its success on the existence and activities of non-state authorities. It should protect, but it also requires, self-governing religious communities that operate and evolve outside and independent of governments. It is a mistake to regard “religion” merely as a private practice, or even as a social phenomenon, to which constitutions respond or react. Instead, the ongoing enterprise of constitutionalism is one to which religious freedom contributes. Human rights depend for protection and flourishing not only on enforceable constraints on government but also on the structure of the social order. With respect to matters of polity, doctrine, leadership, and membership, the autonomy that religious institutions enjoy simultaneously contributes to and benefits from that structure.
Prof. Patrick Clark (University of Scranton) has a worth-reading essay up, over at the Catholic Moral Theology blog. It's called "Libertarianism and Catholic Social Teaching: Convergence and Divergence." I appreciated, among other things, the fact that Prof. Clark acknowledged and explored the thematic "convergences" between (some forms of) libertarianism and the Catholic Social Teaching tradition, en route to recalling and expounding the dissonance. It's disappointing, to me, when Catholic intellectuals and scholars settle for name-calling ("Randian!") as a response to the important points that libertarians make about, e.g., the importance of constraining the ability of the political authority to infringe on the (ordered) liberty of persons and of resisting statist utopianism. (We are, of course, familiar with the various ways in which some forms of philosophical libertarianism, or some policies supported by libertarians, are inconsistent with the Catholic tradition's emphases on community and solidarity.) Here's a bit:
Leo XIII’s path-breaking encyclical Rerum Novarum is often portrayed as a proposal of a “middle way” between Marxist socialism and the unfettered capitalism of the industrial revolution. Yet both sides of this twofold critique emerge from a common root, namely the denunciation of those political philosophies that warrant the modern state’s claim to absolute sovereignty over their citizenry. Put more positively, Leo XIII sought to protect the genuine autonomy of those intermediary human communities (such as trade unions) from the encroachment of governmental structures whose authority over such communities rested not upon any “general will” but rather upon abstract ideological commitments. These ideological commitments, both in their Marxist and capitalist forms, are built upon the presumption that the social realm is most fundamentally an arena of violence. From the Marxist perspective, this violence takes the shape of the great ongoing “class struggle,” while from the capitalist perspective, this violence is the natural basis for the competition that fuels the market and so ultimately produces ameliorative ends. Either way, political organization amounts to an extrinsic (and wholly benevolent) intervention upon “the way things are.” Both inevitably lead to forms of totalitarianism in so far as the lives of individual citizens and their proximate associations become subordinated to the ideological abstractions that justify modern regimes. In this sense, the entire project of modern Catholic social teaching emerges from a suspicion of the modern state’s claim to absolute sovereignty that bears remarkable resemblance to the libertarian suspicion of government today. Both suspicions are about the corrosive effects of unchecked, centralized power. Yet Catholic social teaching would diverge from libertarianism in claiming that this corrosive potential is not so much about the essential nature of power itself but about the contingent conditions under which power is in fact being wielded here and now.
Here's a short story about a talk I gave, at the local Cathedral, in connection with the Fortnight for Freedom. A taste:
“Religious freedom is a human right — not a concession — grounded in human dignity, fundamental and essential for human flourishing. Every person, because he or she is a person has the right to religious liberty.”
This was the message University of Notre Dame law professor Richard Garnett brought to an audience in St. Matthew Cathedral on the eve of July 4, the night before the official closing of the U.S. Bishops’ Fortnight for Freedom. Garnett is an expert on the U.S. Constitution and is a consultant to the United States Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty.
“Our founders put religious liberty at the heart, the core, not the periphery, of their bold new project,” he continued. “They knew that, unless our most sacred things are protected, all our other freedoms — press, speech, conscience, privacy — are vulnerable. Religious freedom was widely seen not as a gift, but, as it should be, as part of the very structure of a free society.”
MOJ readers are probably aware that Tom Berg and I, along with some other legal scholars, have submitted letters to a number of state legislators urging them to include religious-freedom accommodations in laws that expand the legal definition of "marriage" to include same-sex couples. (Matthew Franck is underwhelmed by these efforts.) In any event, Ross Douthat touched on the issue, here, in his comments following the Supreme Court decisions last week. He writes:
Unless something dramatic changes in the drift of public opinion, the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters — the extent to which they are content with political, legal and cultural victories that leave the traditional view of marriage as a minority perspective with some modest purchase in civil society, versus the extent to which they decide to use every possible lever to make traditionalism as radioactive in the America of 2025 as white supremacism or anti-Semitism are today . . . .
The horrifying news about the recent execution-style murder of a Catholic priest by Syrian terrorists makes Cardinal Dolan's recent op-ed on the importance of protecting religious freedom for everyone, everywhere, all the more relevant reading.
