From Notre Dame Philosophical Reviews. This will be of interest to many MOJ readers.
Religion and the Liberal Polity
Terence Cuneo, ed., Religion and the Liberal Polity, University of Notre Dame Press, 2005, 280pp, $22.00 (pbk), ISBN 0268022895.
Reviewed by John J. Davenport, Fordham University
Religion and the Liberal Polity
is a collection of innovative essays from a highly distinguished group
of authors resulting from a PEW Trust seminar with Nicholas
Wolterstorff. The book is similar in quality to an earlier collection edited by Paul Weithman in 1997. Most
of the essays are successful in finding new angles on their chosen
topics, including the question of whether it is right for citizens and
officials in democratic societies to use religious beliefs as bases for
political choices or cite religious reasons in political advocacy. This
question has become familiar in political philosophy and democratic
theory since the 1990s, when an imposing list of religious thinkers --
from Weithman and Wolterstorff to Philip Quinn, Chris Eberle, Kent
Greenawalt and several others -- challenged secular-reason requirements
defended by John Rawls and Robert Audi. These
critics were motivated both by (1) the conviction that secularist
political theory is cutting itself off from powerful strands of liberal
religious conscience that helped abolish slavery and win civil rights,
and (2) that contemporary liberal theory is undermining democracy by
restricting it to inadequate epistemic sources of justification.
[To read the whole review, click here.] _______________
These two items, from this morning's NYT, will be of interest to many MOJ readers--especially those engaged by the controversy about whether government should extend the benefit of law to same-sex unions.
The Heterosexual Revolution
Stephanie Coontz Olympia, Wash.
THE last week has been tough for opponents of same-sex marriage.
First Canadian and then Spanish legislators voted to legalize the
practice, prompting American social conservatives to renew their call
for a constitutional amendment banning such marriages here. James
Dobson of the evangelical group Focus on the Family has warned that
without that ban, marriage as we have known it for 5,000 years will be
overturned.
My research on marriage and family life seldom leads me to agree
with Dr. Dobson, much less to accuse him of understatement. But in this
case, Dr. Dobson's warnings come 30 years too late. Traditional
marriage, with its 5,000-year history, has already been upended. Gays
and lesbians, however, didn't spearhead that revolution: heterosexuals
did.
[To read the rest of this interesting op-ed, click here.]
United Church of Christ Backs Same-Sex Marriage
ATLANTA, July 4 - The United Church of Christ became the first
mainline Christian denomination to support same-sex marriage officially
when its general synod passed a resolution on Monday affirming "equal
marriage rights for couples regardless of gender."
The resolution was adopted in the face of efforts to amend the
Constitution to ban same-sex marriage. It was both a theological
statement and a protest against discrimination, said the Rev. John H.
Thomas, the president and general minister of the denomination, which
has 6,000 congregations and 1.3 million members.
"On this July 4, the United Church of Christ has courageously acted
to declare freedom, affirming marriage equality, affirming the civil
rights of gay - of same-gender - couples to have their relationships
recognized as marriages by the state, and encouraging our local
churches to celebrate those marriages," Mr. Thomas said at a news
conference after the vote by the General Synod.
[To read the rest of this report, click here.] _______________
This March, the Supreme Court considered the question whether the Ten
Commandments could be placed in courthouses and on the grounds of the
Texas state capitol. On Monday, a divided court banned the commandments
in the courthouse, but upheld—in six conflicting opinions—the Texas
monument.
After
40 years as a priest, the Bishop of Middlesbrough hopes for a mixed,
celibate and non-celibate clergy. Access to Mass, rather than marital
status, matters
RECENTLY
it has been my happiness to celebrate 40 years of priesthood. On the
actual anniversary date itself I was able to offer a Jubilee Mass of
Thanksgiving in our cathedral, together with many of my brother
priests, deacons and lay faithful. It was an intensely joyful
experience which touched me more deeply than I had anticipated. On the
eve of that celebration I was interviewed on local radio on a whole
range of issues which included a question about my view on married
priests. I expressed the personal hope that within my lifetime the
Church might more generally allow married priests. Subsequently that
remark has produced some lively debate, not least in some parts of the
Catholic press. That is all to the good, but it might be helpful to put
my remarks into their wider context, and The Tablet has kindly allowed me the space to do so.
Thanks to Rick for continuing the conversation (here).
About Rick's first point: Rick seems to me to be entertaining the possibility that there should be *two* nonestablishment norms, not one--one norm for the federal government, another for state governments. My assumption is that there is one nonestablishment norm--a norm that governs both the federal government and state governments. My question, in the essay: What is the best understanding of this (one) norm?
About Rick's second point: "The First Amendment refers to 'mak[ing] law.' Arguably, symbolic
expression -- e.g., putting up a display -- is not lawmaking. If it is
not, then is it clear that the same non-establishment norm should apply?" Yes, Ithink it is clear: There is one nonestablishment norm, and it applies to all government action, whether or not the action is legislative in character. (Does Rick or anyone else reading this think that the nonestablishment norm does *not* forbid government to put up displays meant to communicate that insofar as the government is concerned, "Christianity is the best--the truest, the most spiritually efficacious, etc.--religion"?) I'm with Michael McConnell on this: Post-incorporation, the norm is that government may not establish religion (not that government may not make a law establishing religion). My question, again: What is the best understanding of this norm?
About Rick's third point: "Certainly, the matter sounds in free exercise, but there are, in fact,
'nonestablishment theories percolating out there' that would seem to
suggest that Establishment Clause has work to do here, too." That's interesting. I did not know that. I'd like to hear something about the theory or theories--enough to begin to assess its or their plausibility.
1. Rick writes: "[T]here are some matters that Michael appears willing to take
as given -- e.g., that the Establishment Clause itself is correctly
understood as constraining state and local governments ...--that
I cannot help believing call for additional examination." Well, yes. But given that the nonestablishment norm applies to the states as well as to the federal government--this is, after all, constitutional bedrock--my interest was in asking what the nonestablishment norm is best understood to mean, as a general matter. Asking whether there is an adequate historical warrant for the proposition that the nonestablishment norm applies to the states as well as to the federal government is a rather different project. Because that proposition is constitutional bedrock, the historical question is of much less practical interest than otherwise it would be. In any event, I wonder whether there's more to say about the historical question than has already been said by various disputants (Curtis, Lash, Smith, Bybee, etc.)
2. Rick also writes: "[T]here are some matters that Michael appears willing to take as given --
e.g., ... that 'affirming religious
premises', as opposed to legislating or punishing, is the kind of state
action to which the Clause can be applied -- that I cannot help
believing call for additional examination." I don't understand Rick's distinction between government's "affirming religious premises" on the one hand and its "legislating or punishing" on the other. At any rate, that is not *my* distinction: It is in the course of "legislating or punishing", among other activities, that government affirms premises, some of which may be religious. Pace Cool Hand Luke, what we (may) have here is a failure to communicate.
3. Finally, Rick writes: "I would also wonder if Michael's proposed answer is able to
respond well to what I regard as a serious Religion Clause problem,
namely, the possibility that government efforts to enforce its own
norms through (for example) anti-discrimination statutes could
interfere with the independence and freedom of churches and religious
communities. To put the matter more directly, does the Establishment
Clause require an exemption (assuming that the Free Exercise Clause
does not, given Smith) for churches, religious schools, etc. from
anti-discrimination laws?"
I am puzzled by this question. I would have thought that the problem Rick identifies is a free exercise problem, not an establishment problem--or, put another way, a religious liberty problem, not an establishment problem. Why should we think that the nonestablishment norm--as distinct from the free exercise norm--might require an exemption? Is there a nonestablishment theory percolating out there that makes Rick's question less puzzling?
[This is lifted from Larry Solum's blog.] Garnett on Transportation and the Urban Poor Nicole Stelle Garnett (Notre Dame Law School) has posted The Road from Welfare to Work: Informal Transportation and the Urban Poor (Harvard Journal on Legislation, Vol. 38, No. 73, 2001) on SSRN. Here is the abstract:
Individuals
struggling to move from welfare to work face numerous obstacles. This
Article addresses one of those obstacles: lack of transportation.
Without reliable transportation, many welfare recipients are unable to
find and maintain jobs located out of the reach of traditional forms of
public transportation. Professor Garnett argues that lawmakers should
remove restrictions on informal van or jitney services, allowing
entrepreneurs to provide low-cost transportation to their communities.
This reform would not only help people get to work, but it could also
provide jobs for low-income people.
{This piece, by NYU's Noah Feldman, will appear in the NYT Magazine this Sunday. To read the whole article, click here.]
New York Times July 3, 2005
A Church-State Solution
By NOAH FELDMAN
I. THE EXPERIMENT
For roughly 1,400 years, from the time the Roman Empire became
Christian to the American Revolution, the question of church and state
in the West always began with a simple assumption: the official
religion of the state was the religion of its ruler. Sometimes the king
fought the church for control of religious institutions; other times,
the church claimed power over the state by asserting religious
authority over the sovereign himself. But the central idea, formally
enshrined at Westphalia in 1648 by the treaty that ended the wars of
religion in Europe, was that each region would have its own religion,
namely that of the sovereign. The rulers, meanwhile, manipulated
religion to serve their own ends. Writing just before the American
Revolution, the British historian Edward Gibbon opined that the people
believed, the philosophers doubted and the magistrates exploited.
Gibbon's nominal subject was ancient Rome, but his readers understood
that he was talking about their world too.
In the inaugural issue of the University of St. Thomas Law Journal (Fall 2003, Volume 1, Number 1), I published an article titled What Do the Free Exercise and Nonestablishment Norms Forbid? Reflections on the Constitutional Law of Religious Freedom. In that article, I presented and defended what I still believe to be the optimal understanding of the establishment clause. As it happens, Justice Scalia, in the Ten Commandments Cases this week, presented/defended a very similar understanding. (So perhaps I am wrong after all!) I'd love to know whether Bob Araujo, Rick Garnett, or anyone else is unwilling to concur in my judgment--and if so, why. A PDF version of my article can be downloaded from this site; the relevant pages of the PDF version are 20-38. _______________
Given the to-and-fro on this blog about the recent takings case, MOJ readers may be interested in what Nobel Laureate Gary Becker and law-and-economics guru Richard Posner have to say, on their blog, about the power of eminent domain: here and here. _______________
