Read this, by Paul Horwitz. Jean Cohen has posted two articles that are misguided on the merits and that engage in unfair and tiresome attacks on those First Amendment scholars who have been proposing "institutional" and "jurisdictional" accounts of church-state matters. Specifically, it is thought by Cohen to be relevant that some of these scholars have worked with the "Beckett Fund" (sic) on some religious-freedom cases.
As Paul explains, though, a bigger story should the fact that a great deal of foundation and other funding is pouring into a project at an elite law school like Columbia for the purpose of doing what is best regarded as activism and advocacy. If this were "Koch money" funding a Lochner resurgence, eyebrows would be way-up. [NOTE: I changed this paragraph from the original post, which referenced plural "projects," etc.]
So, review the web site for the "Public Rights / Private Conscience Project" at Columbia (where Prof. Cohen is appointed). There's this:
The Public Rights / Private Conscience Project is a unique law and policy think tank based at Columbia Law School. We conceptualize and operationalize new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and disseminate those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.
This means, it appears, that the Project funds and otherwise supports political activism and agenda-driven commentary, from the platform of a great law school. And again, the Project's funding does not come entirely from tuition or individual donors.
To understand where the debate is, it is useful to at least read the abstract of one of Cohen's papers:
This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises.
The candor is refreshing. A well-funded program at an elite law school is now committed to "resist[ing]" -- "whenever it arises" -- the notion that there are limits to the purportedly "comprehensive jurisdiction and scope of public, civil law." It's not clear how such a program and its work can really be harmonized with the stated values of elite legal-education institutions but, in any event . . . The aims of such programs should be, let's say, "resisted" -- in the immortal words of Eugene Volokh, "in your face, but with a breath mint." [UPDATE: I changed this paragraph, too, because I mean to address specifically only the Columbia program.]
Over at First Things, there's a transcript posted of my friend and colleague Carter Snead's wise remarks at a reception for Synod participants in Rome. A taste:
. . . In the domain of law and policy, expressive individualism holds that human desires are the source of fundamental rights. Expressive individualism underwrites the jurisprudence of abortion rights in the U.S. It anchors the arguments for unlimited access to dehumanizing and dangerous technologies of assisted reproduction. It undergirds the U.S. regulation compelling the Little Sisters of the Poor to facilitate access to contraception and abortifacients to their employees. And it justifies no-fault divorce. When operationalized in law and policy, expressive individualism often becomes a grave threat to the weakest and most vulnerable, who are seen as burdensome obstacles to the projects of the strong.
By contrast, the Church's vision of persons and our shared life together is one in which we are understood to be embodied souls (not mere wills), whose embodiment has meaning. We live not in isolation, but situated in relationships of solidarity and reciprocal indebtedness. Others have claims on us and we on them, whether we choose them or not. What is fundamental about persons is not that they can construct and pursue future-directed plans, but that they are made in the image and likeness of God, deserving of unconditional love and protection. . . .
Here's my contribution -- on, you guessed it, the "Freedom of the Church" -- to a new volume ("The Rise of Corporate Religious Liberty) edited by my friends Micah Schwartzman, Zoe Robinson, and Chad Flanders. Abstract:
This chapter is part of a collection that reflects the increased interest in, and attention to, the corporate, communal, and institutional dimensions of religious freedom. 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 responds to several leading lines of criticism and 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.
My friend Dean Joseph Kearney (Marquette) shared with me, and gave me permission to post, his recent Archdiocese of Milwaukee "Pallium Lecture" on the Supreme Court and religious liberty. Here's a link: Download Pallium Lecture 2015 It is a clear and elegant account of the Court's Religion Clauses jurisprudence (and a reminder that, for most of our history, the Court had very little to say about these provisions) and also a diagnosis of where we are now. Highly recommended.
Thursday, October 22, 2015
Our dear friend -- a gentle interlocutor, a caring teaching, a careful teacher, a good priest -- Fr. Araujo died yesterday. There will be time, I hope, to return to, and to think about again, some of the many, many thoughtful papers and posts through which he taught, pushed, and enlightened us. I'd encourage readers to re-read the inspiring "goodbye" he posted here last August, when he went into hospice care. And for those unfamiliar with his story, and with the range of his scholarship, here is the link to his faculty web page at Loyola. Finally (for now), let me repost the announcement, from a few days ago, of an in-the-works conference and volume in his honor.
Requiem aeternam dona ei, Domine, et lux perpetua luceat ei. Requiescat in pace. Amen.
