Dr. Joel Harrison, of the University of Sydney, has a new book with Cambridge University Press, called Post-Liberal Religious Liberty: Forming Communities of Charity. (Get yours here.) I'm honored that he engages -- critically, but fairly and carefully -- my own church-state writing. I asked him to supply MOJ with an "extended blurb", to give readers a sense of the argument. Here it is:
Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020)
This argument challenges the increasingly popular liberal egalitarian account of religious liberty. According to this account, found in the writing of scholars like Ronald Dworkin and Cécile Laborde, as well as case law, religious liberty is a subset of or signifier for a broader category of liberty, protecting personal autonomy or authenticity. Harrison traces how this has two consequences: it treats as suspect any claim to consider religion, traditionally understood, as especially important; and it leads to the claim that religious groups and persons should increasingly be subject to state law, where the law reflects the claimed autonomy interests of individuals.
Harrison argues that challenging this account requires challenging how liberalism fundamentally understands religion, the ends of a political community, and the role of civil authority. Religion on this understanding is cast as private, and increasingly associated with individual self-definition or even consumption. Political order is cast as secular, with civil authority defined by a logic claimed to be autonomous of religion: negotiating and furthering individual rights-claims. However, this differentiation between religion and the secular rests on a narrative of secularisation that, Harrison argues, is in reality a half-concealed theology.
In contrast, Post-Liberal Religious Liberty recovers a different theological and political vision. It draws especially from Augustine of Hippo, a subsequent tradition of associational thinking, and contemporary post-liberal thinkers like John Milbank. Harrison argues that civil authority should be understood as an arm for pursuing human flourishing, right relationship, or the virtuous life, one complementary with and responsive to the Church. This requires a commitment to religion – the love of God and neighbour – as central to the ends of a political community. Such claims are challenged, in whole or in part, even within Christian thought. Harrison contrasts this argument with the writing of three prominent modern Christian scholars: John Finnis, Richard Garnett, and Nicholas Wolterstorff. However, he argues that only such a commitment makes sense of the liberty of plural religious groups. It points to a good – our common good – that religious liberty serves.
(Available here, discount code: PLRL2020; or via Cambridge Core online)
I was struck, the other day, by the realization that the upcoming presidential election in the United States is the fifth one since the launch of this blog, back in 2004. Skimming through old posts, I was reminded that the "for whom should Catholics vote?" and "what considerations should guide Catholics' electoral decisions?" and "what are 'prudential' considerations, anyway?" questions were consistently, sometimes energetically, engaged.
This has not been the case this year, and not only because these conversations and arguments migrated to Twitter. And, I'll confess to not missing them very much. Very little seems to change (although, in 2016 and 2020, unlike -- in my view -- 2004, 2008, and 2012, candidates' manifest and deep character defects might add new ingredients to the mix).
There was some controversy, a few days ago, about former V.P. Biden having been referred to as a "fake Catholic." No, he's baptized, and the sacrament, we believe, works. (Questions about scandal, excommunication, etc., are different.) And, there was a published account that, on the contrary, his "Catholic roots have shaped his public life." Interestingly, that account stated that "[Biden's] is . . . a faith that has come into conflict with Democratic policy positions, forcing him to change and evolve along the way to keep up with shifting uniform stances within the party." "Forcing him"?
Pushing back on the "fake Catholic" charge, John Gehring conceded (phew!) that it is "legitimate for Church leaders and others to challenge Biden on his positions, including his support for abortion rights," if it's done with "civility." (Gehring claims that this requirement rules out "distorting Biden's position as “pro-infanticide”, but one suspects that the entirely accurate statement that "Biden believes that American positive law should protect abortion on demand, for any reason, at any time, at public expense" wouldn't make him much happier.)
There's been an interesting contest about how to read the USCCB's "Faithful Citizenship" document , and about that document's explicit emphasis on the immorality and injustice of our abortion regime, and about the significance of Pope Francis's statement in Gaudete et exsultate that "equally sacred [to the lives of the "innocent unborn"] are the lives of the poor, those already born, the destitute, the abandoned and the underprivileged, the vulnerable infirm and elderly exposed to covert euthanasia, the victims of human trafficking, new forms of slavery, and every form of rejection.” Of course, the Holy Father's statement is precisely the heart of the pro-life, anti-abortion position: All human persons, because they are human persons, are radically equal in dignity. It is precisely because of this "equal[] sacred[ness]" that abortion -- and its legal protection -- is gravely unjust. Nothing about Pope Francis's statement could plausibly be understood as in tension with the bishops' observation that, given the American legal givens, the need to remedy our unjust abortion regime remains "preeminent", and efforts to suggest otherwise seem opportunistic and misplaced. Similarly, efforts to suggest that the regular and longstanding emphasis on "prudence" in the Catholic approach to politics calls into question the immorality of the American abortion-regulation regime are sophistical.
The launch of a "Catholics for Biden" looks to make the case (in Michael O'Loughlin's words) to Catholic voters that, all things considered, the policy-outputs of a Biden-Harris administration would be better, in terms of Catholics' "shared values", than those of another Trump-Pence administration. There's the rub (once again), I guess. Even assuming "shared values" among American Catholics, it is not at all clear that we share a "metric" for identifying better or worse policy outputs. The "Catholics for Biden" effort, for example, probably does not weigh too heavily the clear and negative effects a Biden-Harris administration would be for Catholic schools and school choice. The "Catholics for Trump" analogue (I haven't checked) probably does not put into the balance, say, the downsides of deregulation. And so it goes.
St. Thomas More, patron of statespersons and politicians, pray for us!
I very much enjoyed and appreciated George Weigel's recent-ish book, The Irony of Modern Catholic History. I realize that my liking the work was probably over-determined, given its themes and plot-lines and characters. My sense is that Weigel wrote it as an ecclesiological work -- and it is -- but I also think it (i.e., its helpful presentation of the Catholic engagement with, and proposals to, "modernity") should be incorporated into political-theory courses.
On John Paul II and freedom: "A truly human freedom is one in which we freely choose what can rationally be known to be good, and do so as a matter of habit. Freedom as willfulness is like a child banging on a piano; the freedom that makes for mature individuals and coherent societies is like an artist who has mastered the disciplines that allow him or her to make real music on the piano[.]"
Benedict XVI at Westminster: "Religion . . . is not a problem for legislators to solve, but a vital contributor to the national conversation."
Benedict XVI again, at the Bundestag: "[T]here is also an ecology of man. Man too has a nature that he must respect and that he cannot manipulate at will. Man is not merely self-creating freedom. Man does not create himself."
Weigel on the two: "[They] constantly called the late modern world to [the] freedom for excellence. . . . Freedom for excellence, they argued, was humanism in full."
Submissions and nominations of articles are being accepted for the eleventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2020. The prize will be awarded at the 2021 AALS Annual Meeting. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected]. The deadline for submissions and nominations is September 1, 2020.
I appreciated this piece at City Journal, "Liberty, Government, and the Preservation of Civil Society." In particular -- like this wonderful book by Profs. Nicole Stelle Garnett and Margaret Brinig -- the author emphasizes the structural, freedom-enhancing role of private schools, the survival of which is gravely threatened at present by policies relating to the re-opening of schools. Here's a bit:
we need both legal and policy strategies for preserving the mediating bodies of civil society. One timely example is the need to shore up the K-12 private schools serving low-income kids—schools now in grave danger of closing en masse because of the Covid-related economic crisis. More than 100 private schools have already closed since the lockdowns. Today’s forced economic slowdown is an aberration, one that we’re unlikely—with any luck—to see again in our lifetimes. The federal government has helped individuals and businesses get through it with various initiatives. Non-public schools are an important part of civil society; they reflect the wide diversity of American history and culture, they are often longstanding institutions, and they provide valuable benefits to students and communities. Schools serving low-income students give families options other than assigned neighborhood public schools, which might be low-performing or unsafe. Short-term aid, in the form of scholarships, tax credits, or grants, could help these schools weather this storm.
Without support, potentially hundreds of these schools will close for good. Some analysts have focused attention on the price that students would pay (and the expenses public schools would have to absorb) should the nation’s private-school sector collapse. Those are important considerations, but my focus is different. Since our founding, Americans have believed that governments are formed to protect our natural liberties. Thanks to centuries of experience, we now know that civil society is an essential contributor to our freedom. We must recognize that the government has a duty to help preserve America’s mediating institutions.
Here's a great City Journal essay by the Other Professor Garnett, "Why We Still Need Catholic Schools". A bit:
Urban Catholic schools have a long and noble record of helping to lift students out of poverty. Decades of social-science research have demonstrated a “Catholic school effect” on the academic performance and life outcomes of disadvantaged minority students. Beginning with the groundbreaking work of James Coleman and Andrew Greeley decades ago, scholars have found that Catholic school students—especially poor minorities—outperform their public school counterparts. More recently, Derek Neal’s research demonstrated that Catholic school attendance increased the likelihood that a minority student would graduate from high school from 62 percent to 88 percent and more than doubled the likelihood that a similar student would graduate from college. Catholic school students, controlling for a range of predictive demographic factors, are more likely to finish high school, attend college and graduate, maintain steady employment, and earn higher wages than similar students attending other types of schools.
Catholic schools are also especially good at forming citizens. A common argument against private school choice is that public schools are necessary to inculcate democratic values. The empirical evidence, however, suggests that private schools in general, and private schools participating in school-choice programs in particular, perform as well as, or better than, public schools in this task.
I have blogged a fewtimes, over the years, about the "Big Mountain Jesus" statue at Whitefish ski resort (a great place, BTW) in Montana. I'm very sorry to share the news that the statue was vandalized last weekend. I hope this latest attack will be, in the long run, no more successful than the failed efforts to have it removed as an Establishment Clause violation. Here's a little bit, from a First Things piece I did a while back, about the statue:
Whitefish Mountain, a ski resort in northwest Montana, is known for its spicy terrain, rime-clothed “snow ghosts,” and postcard-perfect views of Glacier National Park. And, of course, for “Big Mountain Jesus.”
Big Mountain Jesus is a kitschy but beloved dashboard-ornament-style six-foot-tall statue standing on a six-foot-tall stone pedestal near the summit of one of Whitefish’s peaks. It was erected in 1955 by some local Knights of Columbus who had served in Italy during World War II with the 10th Mountain Division and remembered fondly the statues and shrines that were ubiquitous in the Apennines and Alps. Because Whitefish and the statue are on leased public lands, and the Knights’ permit has to be reauthorized by the United States Forest Service every ten years, the enterprising secularizers at the Freedom from Religion Foundation eventually, and predictably, made a federal case out of Big Mountain Jesus, claiming among other things that it “excludes all the brave Jews and atheists that fought in World War II.”
The statue survives, for now, notwithstanding the lack of any accompanying, equal-time-supplying idols or icons. The federal judge assigned to the case noted that “[t]o some, Big Mountain Jesus is offensive and to others it represents only a religious symbol. But the court suspects that for most who happen to encounter Big Mountain Jesus, it neither offends nor inspires.” Instead, the memorial “serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, t-bars, leather ski boots, and 210 cm skis.” The relevant U.S. Court of Appeals took the auspices and then agreed, duly reporting that Big Mountain Jesus has a “secular purpose” and—because “the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in Mardi Gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures”—the statue does not “endorse” Christianity.
Here is a short piece I did for the Law & Liberty site, on the Supreme Court's recent decision in two cases involving the so-called "ministerial exception" and Catholic schools. A bit:
In a pair of cases involving the religious-freedom rights of parochial schools, the Supreme Court on Wednesday re-affirmed a core First Amendment rule and a crucial aspect of church-state separation, properly understood: Public officials, regulators, and courts lack the authority to decide who should, or should not, perform important religious functions. Questions about religious institutions’ religious teachings, and teachers, belong to the “church” and not to the “state.” . . .
As the Court had in Hosanna-Tabor, Justice Alito’s opinion emphasized the deeply rooted concern in our law, history, and traditions of “the general principle of church autonomy” and of religious institutions’ “independence in matters of faith and governance and in closely linked matters of internal government.” Along with other scholars, I have explored the connections between the importance of this “general principle” in American constitutional law and some of the great church-state controversies of the past and the long-running (and still continuing) struggle for the “freedom of the church.” As the Court observed, and in keeping with this history, the First Amendment has long been understood as requiring secular authorities to avoid attempting or purporting to “resolv[e] underlying controversies over religious doctrines.” Whatever disagreements might persist about the content of the Constitution’s no-establishment rule (regarding prayers at town-hall meetings or war-memorial crosses, for example), it seems clear that the paradigmatic feature of the kind of religious “establishment” that the First Amendment was designed to rule out is political meddling in the selection of religious ministers, the formulation of religious doctrines, and the teaching of religious truths. . . .
At the end of her dissent, Justice Sotomayor expressed concern about the implications of the decision “in a pluralistic society like ours.” However, it is precisely because ours is a “pluralistic society” that the Court’s 7-2 determination is so important. In a meaningfully pluralistic society, not every organization or institution will act the same way, or be structured in the same way, or have the same goals, or be governed by the same rules. A society without mission-oriented Catholic schools is a less pluralistic society than one with them. A political authority that imposes the same employment rules on every employer, regardless of sector or context or history or aims, is not diverse, but homogenous and monochrome. And, in any event, foundational commitments to limited government and religious liberty require that decisions about religious leaders and teachers be left to religious decisionmakers.
The Court's opinion is here. I am, I confess, a bit overwhelmed by the news. I have been working on the Blaine Amendment / school choice / religious freedom cluster of questions, as a litigator and as a scholar, for more than 20 years. I have been hoping for this day for a long time. Among other things, it was wonderful that Justice Alito told the story (ignored by or unknown to too many people) about the rank anti-Catholicism that so pervasively shaped school-funding debates for so long.
Here's a short essay of mine, from the early 2000s, on these matters. (Obviously, I would have liked a citation, but one cannot have everything!) The abstract:
The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called "Blaine Amendments" - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom.
First, the Article considers what might be called the "federalism defense" of the provisions. It concludes that even full-throated support for the Rehnquist Court's so-called federalism "revival" does not require one to regard the Blaine Amendments as courageous efforts by particular communities to provide greater protection to religious freedom, by insisting on a sharper, and more rigid, "separation of church and state." In fact, these provisions might better be seen as representing the failures of particular communities fully to appreciate the nature and implications of religious freedom and liberal pluralism.
Second, the Article sounds a cautionary note concerning the fact that the Blaine Amendments were in large part the product of widespread concern about the political and cultural effects of Roman Catholicism. While it is true that the Blaine Amendments - like much else in the American experience - were anti-Catholic, they are best understood as reflecting more than mere "bigotry." Rather, the Blaine Amendments can usefully be situated in the context of the rich and growing scholarly literature on "civic education," and on the challenges posed by religious faith, teachings, and communities to certain conceptions of political liberalism. Although we are at present confronting the Blaine Amendments primarily as constraints imposed by positive law on local policy choices about school funding, these provisions take us to the heart of perennial questions about statecraft, and soulcraft. They represent, among other things, the enactment into law of certain claims about the aims of education, the prerogatives of the liberal state, the proper scope of religious obligation, and even the nature and end of the human person.
Finally, the Article proposes that Blaine Amendments might most profitably be engaged not simply as rules of positive law, but as theological arguments. The point of this observation is not to assert that the Blaine Amendments' religious meaning is a constitutional strike against them, but rather to enrich our conversations about them. After all, if the Blaine Amendments are not merely legal constraints on state legislatures' funding options, but also claims about the content and proper sphere of religious beliefs, obligations, and loyalties, then it would seem perfectly appropriate to raise constructive, yet unapologetic and unbracketed, religious counter-claims about these matters in response.
I have a short comment up at Our Sunday Visitor on today's abortion decision from the Supreme Court. Here's a bit:
There are, of course, bigger and deeper problems with Monday’s ruling. First, as Justice Samuel Alito reminded readers, the June Medical Services decision is the latest in a depressingly long string of cases in which “the abortion rights recognized in this court’s decisions is used like a bulldozer to flatten legal rules that stand in our way.” The late Justice Scalia referred regularly to this dynamic as “the abortion distortion.”
The decision is also wrong, as Justice Clarence Thomas eloquently stated, “for a far simpler reason: The Constitution does not constrain the states’ ability to regulate or even to prohibit abortion.” Forty-seven years and tens of millions of abortions later, the sweeping and historically ungrounded abortion right invented in Roe v. Wade is, and has always been, he said, “a creation that should be undone.” Although the court was not asked by the state in June Medical Services to reconsider and reject Roe, other parties will, and should. Thomas’ opinion shows how the justices should respond.
Disingenuous questions, and slippery answers, about Roe and abortion have become a familiar feature of judicial confirmation hearings in the Senate Judiciary Committee. For many years, federal judges have been nominated, supported and opposed because of predictions about how they would rule in abortion-related cases. This is unfortunate, but it is also unavoidable. Once the court announced a constitutional right to procure and perform a procedure that most Americans view — at least sometimes — as morally troubling and that many regard as a gravely wrong assault on the dignity and equality of the most vulnerable among us, we could hardly be surprised that people care very much, and politicians purport to, about the views of the court’s members.
The Supreme Court, once again, and notwithstanding the addition of several judicial conservatives, has failed to correct its serious mistake. However, legislators and citizens alike will, and should, embrace the words of the late Father Richard John Neuhaus: “We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life.”
