Bradley on Murray

Gerard V. Bradley (Notre Dame Law School) has posted "We Hold These Truths and the Problem of Public Morality" (Catholic Social Science Review, Vol. 16, pp. 123-132, 2011) on SSRN.

Here is the abstract:

This essay maintains that although We Hold These Truths represented an important milestone in Catholic reflection on the American regime, Murray's analysis of public morality and the state's role in its promotion and enforcement is notably weak and of little assistance to us today. More specifically, it argues that Murray’s analysis is insufficiently philosophical and too concerned with the pragmatic task of forging an approach widely acceptable in the America of his day; that it rests on an artificial distinction between “private” and “public” morality that fails to sufficiently appreciate the essential dependence of sound morals legislation upon the government’s recognition of moral truth; and that it too closely identifies the whole of law’s competence with the scope of its coercive jurisdiction, thus failing to appreciate the directive and educative properties of law and its role in the establishment of conditions conducive to human flourishing.

Garnett on Kedroff v. St. Nicholas Cathedral

Richard Garnett (Notre Dame Law School) has posted “Things That are Not Caesar’s”: The Story of Kedroff v. St. Nicholas Cathedral on SSRN.  This is a chapter in First Amendment Stories (edited by Garnett and Andy Koppelman)

Here is the abstract:

This chapter, from Foundation Press’s forthcoming volume First Amendment Stories, examines closely the background, context, and implications of the Supreme Court’s underappreciated but highly significant decision in Kedroff v. St. Nicholas Cathedral. It is suggested that Kedroff – like the Steel Seizure case, which was argued and decided during the same year – reminds us of the importance of the structural devices employed in our Constitution to protect liberties and enhance democracy. These devices include, of course, the separation of powers and federalism, as well as the pluralistic principle of church-state separation, correctly understood. As Mark DeWolfe Howe observed, in a short essay published in the Harvard Law Review soon after the Kedroff decision, the Court in that case, by affirming the constitutional basis of church autonomy, engaged “a classic problem of political theory,” that is, the “pluralistic thesis . . . that government must recognize that it is not the sole possessor of sovereignty,” or, as another writer put it, that “Caesar . . . is only Caesar, [and so should] forswear any attempt to demand what is God’s.”

The law and economics of "monastic malediction"

Peter T. Leeson (George Mason University - Department of Economics) has posted an intriguing abstract on SSRN, discussing the law and economics of "monastic malediction."

The abstract reads:

Today monks are known for turning the other cheek, honoring saints, and blessing humanity with brotherly love. But for centuries they were known equally for fulminating their foes, humiliating saints, and casting calamitous curses at persons who crossed them. Clerics called these curses "maledictions." This paper argues that medieval communities of monks and canons used maledictions to protect their property against predators where government and physical self-help were unavailable to them. To explain how they did this, I develop a theory of cursing with rational agents. I show that curses capable of improving property protection when cursors and their targets are rational must satisfy three conditions. They must be grounded in targets' existing beliefs, monopolized by cursors, and unfalsifiable. Malediction satisfied these conditions, making it an effective institutional substitute for conventional institutions of clerical property protection

Unfortunately, there's no paper available yet, so we will have to wait to see how Leeson develops these ideas.

Brownstein on Keeping the Free Exercise and Establishment Clauses in Balance

Alan E. Brownstein (University of California, Davis) has written an interesting article, "The Religion Clauses and Mutually Reinforcing Mandates," Cardozo Law Review, Vol. 32, 2011 available on SSRN.

Here is the abstract:

Legal commentary often describes the Free Exercise Clause and Establishment Clause of the First Amendment as either being in tension with each other or as serving overlapping and redundant purposes. Both of these perspectives commonly share a willingness to dispense with or subordinate the requirements of one clause while calling for the rigorous implementation of the other. This Essay suggests a different and overlooked dimension of the relationship between the two clauses: in important ways each of the religion clauses supports and reinforces the justification for and rigorous enforcement of the other. Correspondingly, the dilution of one clause undermines the arguments for taking the other clause seriously. To some significant extent, the religion clauses stand or fall together

These reinforcement and dilution connections cover a range of justifications for, and applications of, the two clauses. Establishment Clause constraints on state subsidies of religious institutions and activities support the value formation justification for protecting free exercise rights. The holding of Employment Division v. Smith, eliminating constitutional protection against neutral laws of general applicability, undermines the taxpayer liberty justification for limiting state aid to religious institutions. Free exercise exemptions and accommodations standing alone unacceptably advantage religion in the market place of ideas, and establishment clause limits on government support for religious organizations and beliefs standing alone unacceptably disadvantage religion in the market place of ideas. The rigorous enforcement of each clause (or neither clause) is necessary to balance out these distorting impacts. This essay identifies and discusses these and other ways in which the arguments supporting or undermining each of the religion clauses reinforces or weakens the other.

And from the essay:

In this Essay, I argue that there is an additional and important relationship between the two clauses that is often neglected in legal commentary. I suggest that the Free Exercise Clause and Establishment Clause support and reinforce each other in critical ways. The justifications for the rigorous enforcement of one Religion Clause often substantially reinforce the arguments for the rigorous enforcement of the other, and the dilution of one clause may in a corresponding manner undermine the arguments for taking the other clause seriously. [FN15] More specifically, I think the arguments for a rigorously enforced Establishment Clause doctrine support a reading of the Free Exercise Clause mandating greater protection of religious practice than is provided under Employment Division v. Smith. From the alternative perspective, the arguments supporting the limited understanding of the Free Exercise Clause endorsed in Smith undermine the justifications for a rigorously enforced Establishment Clause.
The normative attitude supporting this perspective assigns considerable value to the right to practice one's faith free from state interference while acknowledging that the affirmative support of religion by government risks the sacrifice of important liberty and equality interests of both believers and non-believers. Moreover, it doubts the viability of interpretations of the Religion Clauses that subordinate one clause to the other. Ultimately, the result of a quest for constitutional victory for either free exercise rights or Establishment Clause guarantees standing alone may be the rejection of both clauses as a limit on government action--leaving most church-state issues to political resolution and majoritarian control.
If this thesis is correct, commentators supporting a rigorously enforced Free Exercise Clause but a diminished Establishment Clause, or vice versa, are likely to discover that their critiques of one clause have severely undermined the other. Rather than promoting the values affirmed by one clause over the interests protected by the other, they risk rendering both clauses dysfunctional. Thus, the correct constitutional choice may not be one between free exercise rights and Establishment Clause mandates, but rather a choice between a rigorously enforced understanding of both of the Religion Clauses or the judiciary's failure to take either clause seriously as a limit on government conduct.

Brownstein basically argues that we are Constitutionally required to treat religion "differently," and that to do so fairly, we should have strong accomodations for religion under the Free Exercise clause and sharp limits on government religious expression or support of religious groups or institutions under the Establishment Clause.  Several difficult questions remain unanswered under this approach, not least of which is the question: what is religion?

Witte to speak on marriage

John Witte (director, Emory University's Center for the Study of Law and Religion) is speaking on the Biblical foundations of covenant marriage at St. Marks College in North Adelaide, Australia, this Thursday, July 21.  CSLR's announcement is here.  According to this website, the event is at St Mark’s College, 46 Pennington Terrace, North Adelaide on Thursday 21 July at 5.30pm.

Garnett on Employment Division v. Smith

Richard Garnett (Notre Dame Law School) has posted "The Political (and Other) Safeguards of Religious Freedom" (Cardozo Law Review, Vol. 32, p. 1815, 2011) on SSRN.  Here's the abstract:

This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law and politics if this assignment is to work well, that is, to in fact promote and protect religious freedom. Among other things, it is proposed that governments should attend carefully to the “infrastructure” of religious freedom, and should work to create and sustain the institutional and other conditions that are conducive to religious liberty. And, notwithstanding Smith, courts should enforce vigorously, using judicially manageable standards, the church-autonomy principle and the institutional separation of religious and political authority. After all, the “political safeguards” of religious freedom can be effective only if there are work in society associations and authorities that are not merely political. 

And from the text: 

The Smith decision has been the target of sustained and withering criticism from scholars whose judgments I respect, and it has been widely excoriated as horribly and harmfully wrong.

After surveying some of the criticisms of Employment Division v. Smith, Garnett writes:

I should really hate this case. And yet, I do not. . . .


For starters, I do not think Smith is best, or even fairly, read as endorsing or expressing the view that religious freedom is anything other than a fundamental human right. I do not “hear” in the majority opinion any reservations about the importance of protecting and promoting that freedom in the complicated conditions of a pluralistic, diverse society. I do not read Smith as constitutionalizing the claim that religion is simply a matter of private belief and is not also about conduct, worship, liturgy, ritual, association, and authority.35 The message, or teaching, of Smith is not that religion-blind formal “neutrality” is the appropriate, let alone the required, approach for governments to employ with respect to religious belief, believers, and their actions.36 It does not announce a rejection of Professor McConnell’s correct statement that governments may and should “take religion specifically into account” for the purpose of “allowing individuals and groups to exercise their religion.”37 True, Justice Scalia, writing for the majority, emphasizes the continued need for judicial enforcement of a rule against anti-religious discrimination and “governmental classifications based on religion”;38 he does not, however, declare that religious freedom is reducible to nothing more than freedom from religion-related discrimination or that our commitment to religious liberty is only a particular illustration of or vehicle for our more general commitment to equality, or to liberty, or to “conscience.” . . . 

Smith affirms not the irrelevance or the dangers of religious freedom, but instead what my colleague Professor Kelley has called the relative primacy of political actors in the accommodation of religion. In other words, it is less a case about the content and foundations of religious freedom, or about minimizing the harms that religiously motivated conduct can cause to the common good, or about throwing up judicial roadblocks to exemptions, accommodations, and compromises, than it is about institutional competence, comparative advantage, federalism, and the limits of judicial review.45 These considerations should not be regarded as unwelcome or hostile interlopers in the religious liberty conversation.

Many defenders of religious liberty have viewed Smith as a disaster.  This relatively short essay is a notable dissenting view, offering very interesting defense of Smith by a scholar who cares deeply about religious life.

Update: Garnett's essay gets Larry Solum's recommendation.  

Religious reasons and cultural reasons

Marc DeGirolami has a thoughtful post up on Mirror of Justice about distinguishing religious reasons from cultural reasons.  He concludes: "[S]omehow the rhetoric of distinguishing between religion and culture continues to permeate our discussion of these issues, even our legally binding discussions.  It's the kind of distinction which is easy to state as if it were clear, and maybe it is even useful in some skin-deep, throw-away-line kind of way.  It's a rhetorically appealing device which trades sub silentio on a very particular view of the nature of religion.  But scratch at it just a little, and it begins to disintegrate."  Read the whole post here.