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.

Silecchia on Pope John Paul II’s “Evangelium Vitae”

Lucia Ann Silecchia (Catholic University of America (CUA) - Columbus School of Law) has posted "Pope John Paul II's Evangelium Vitae and the 'Horizon of the Good'" (Journal of Christian Legal Thought, Vol. 1, No. 1, Spring 2011) on SSRN.

Here is the abstract:

This essay, for the inaugural issue of the Journal of Christian Legal Thought, invites readers to consider the lessons of Pope John Paul II’s “Evangelium Vitae” for modern lawyers. The essay argues that Pope John Paul’s well known encyclical is both a strong, eloquent defense of vulnerable human life, as well as a call to all those involved in the law to consider the demands of law, conscience, and morality in the public and private spheres.

Sherr on God and Human Rights

Avrom Sherr (University of London - Institute of Advanced Legal Studies) has posted "Does God Believe in Human Rights" on SSRN.  Here is the abstract:

This paper considers similarities between types of religious obligation and obligations to observe or address human rights. The paper asks if there are any developing themes or rules to help us to know which, of religion or human rights, trumps the other and if so when? The paper addresses such issues from the background of an Orthodox Jewish approach to human rights. Human rights appear to be cultural rather than rationalist since they are not universal. Since no right is absolute and therefore all rights are relative what happens when religious duties clash with human rights or when the right to practice a religion clashes with some other human right? Three problematic areas of Jewish religious practice are considered: circumcision, kosher treatment and slaughter of animals and the get divorce in which the man has to give the woman the divorce. The law of the State is the one which must be obeyed as a principle of Jewish law. If we are in the world of competing rights or balancing rights then Dworkin has much to say. Cultural and religious dress and traditions are causing problems on the European continent, arranged marriages might be right, but forced marriages wrong. The paper ends with the balanced rights of a Canadian Charter case on a Québecois Succa.

Garnett on Winn v. Arizona Christian Tuition Organization

Nicole Stelle Garnett (Notre Dame Law School) has posted "A Winn for Educational Pluralism" (Yale Law Journal Online, May 2011) on SSRN.

Here is the abstract:

This short essay takes as its starting point on the Supreme Court’s recent decision in Winn v. Arizona Christian Tuition Organization, which involved an Establishment Clause challenge to Arizona’s scholarship tax program — a school-choice device that provides tax credits from state income taxes for donations to organizations granting scholarship to private K-12 schools. In Winn, a divided court ruled that taxpayers lack standing to challenge this and other tax credit programs — thereby dramatically limiting the Flast v. Cohen exception to the no-taxpayer-standing rule. The essay makes the case that the Winn will promote authentic educational pluralism by clearing the constitutional path for further expansion of scholarship tax credit programs, which enhance the educational opportunities available for students of modest means.

For another commentary on Winn v. Arizona Christian Tuition Organization, see Edward A. Zelinsky's critique of "tax expenditure analysis," also from the Yale Law Journal Online.

Landon on Usury and the Church

Jonathan Caleb Landon has posted "Usury and the Church: A Christian Response to Payday Lending" on SSRN.

Here is the abstract:

A recent study by Christopher Peterson & Steven Graves found that “payday” lenders are more prevalent in conservative Christian areas. This paper offers a supplement to Peterson & Graves findings by adding to the discussion the perspective of the Christian churches, located both inside and outside of the areas implicated in the study, on the issue of poverty and its connection to predatory lending practices. This paper’s study employed ethnographic research methods to uncover Christians' perception on these issues. The findings do not support the social/political stereotype that conservative Christians necessarily support conservative political positions regarding usury laws, but instead suggest a more fundamental issue with the Christian church actually accomplishing its mission of applying Biblical teaching to all areas of life, which include one's financial dealings and providing for the poor in one's community.

Russo and Thro on Christian Legal Society v. Martinez

Charles J. Russo (University of Dayton) and William E. Thro (Christopher Newport University) have posted "Another Nail in the Coffin of Religious Freedom? Christian Legal Society v. Martinez" (Education Law Journal, Vol. 12) on SSRN.

Here is the abstract:

Amid on-going battles over the place of religious groups and even religion itself in the marketplace of ideas known as American public education, the United States Supreme Court added fuel to the fire in Christian Legal Society v. Martinez. In Christian Legal Society, the Court affirmed an order of the Ninth Circuit, agreeing that officials at a public law school in California had the authority to implement a policy effectively marginalizing religious freedom by requiring an on-campus religious group to admit all-comers from the student body, including those who disagree with its beliefs, as a condition of becoming a recognized student organization.

On remand for consideration of whether law school officials applied the all-comers policy selectively to the Christian Legal Society (CLS), the Ninth Circuit joined the Supreme Court in placing another nail in the coffin of religious freedom. In so doing, the Ninth Circuit rejected the claim of the CLS on the ground that organizational leaders failed to preserve their argument that law school officials selectively applied the policy for appeal, making it apparently the only public institution of higher learning in the United States with such a policy in place.

Whether Christian Legal Society is a victory for those who think that students should not be subject to discrimination due to their religious beliefs or a setback for religious freedom depends, of course, on one’s point of view. Regardless of how one interprets Christian Legal Society, it has the potential to change the landscape of religious freedom in the United States dramatically insofar as officials can potentially block faith-based groups from public facilities. In light of the ramifications for religious freedom that Christian Legal Society raises for the United States and the United Kingdom, the remainder of this article is divided into two major parts. The first section reviews the facts, judicial history, and the opinions in the Supreme Court’s ruling in Christian Legal Society. The second part reflects on what Christian Legal Society means for religious freedom in educational settings. The article rounds out with a brief conclusion.

Garnett and Brinig on Catholic Schools and Charter Schools

Nicole Stelle Garnett and Margaret F. Brinig (both of the Notre Dame Law School) have posted "Catholic Schools, Charter Schools, and Urban Neighborhoods" (forthcoming, University of Chicago Law Review, 2012) on SSRN.

Here is the abstract:

This paper addresses implications for urban neighborhoods of two dramatic shifts in the American educational landscape: (1) the rapid disappearance of Catholic schools from urban neighborhoods, and (2) the rise of charter schools. In previous studies, we linked Catholic school closures to increased disorder and crime, and decreased social cohesion, in Chicago neighborhoods. This paper turns to two questions unanswered in our previous investigations. First, because we focused exclusively on school closures in our previous studies, we were uncertain whether our results reflected the work that open Catholic schools do as neighborhood institutions or whether we were finding a “loss effect.” Second, since we have thus far focused on one type of educational institution, we could not say whether we were finding “school effects” generally, or “Catholic school effects” in particular. In this paper, we begin to answer both questions by comparing the effects of open Catholic and charter schools on neighborhood crime rates. Relying on police-beat-level data, we find that that police beats with open Catholic schools have lower rates of serious crime than those without one. Usually, a charter appears to have no statistically significant effect on crime rates. Our findings are important for a number of related reasons discussed in the paper.

Hamoudi reviews Constitutional Theocracy by Hirschl

Haider Ala Hamoudi (University of Pittsburgh - School of Law) has posted a book review of Constitutional Theocracy by Ran Hirschl on SSRN (Osgoode Hall Law Journal, forthcoming).

Here is the abstract:

When I was a child, the chant I always associated with Islamism was “the Qur’an is our constitution.” Gradually it has been replaced, however, with the mantra of the Muslim Brotherhood in Egypt, “Islam is the solution.” These simplistic tropes seem similar, but the difference between them is significant. In many ways, this distinction lies at the heart of the considerable contribution that Ran Hirschl has made in his fine work, Constitutional Theocracy, to the understanding of constitutional governance in societies where there is a substantial legal and formal recognition of religion. However, this distinction also reveals the biggest problem in his analysis. Simply stated, one of these slogans (“the Qur’an is our constitution”) is logically incompatible not only with modern constitutional governance but also with the very notion of the Westphalian nation-state, while the other (“Islam is the solution”) is not.

To many people raised in a secular tradition, constitutional governance is necessarily secular. It is precisely this belief, often so thoroughly internalized that it is not questioned, that Hirschl convincingly critiques. While he acknowledges that the marriage of theocratic and constitutional governance is one fraught with friction, Hirschl also points out – correctly – that the two systems have far more in common than has been previously acknowledged. Less convincing is what I might describe as an ancillary thesis, though one Hirschl takes quite seriously, which is that the constitutional theocratic structure is a rational and prudent secular response to growing global religious fervor. Hirschl argues that constitutional theocracy is designed to empower courts, with their secularly trained elite judges, to interpret religious mandate, thereby constraining, limiting, and in some cases neutering the more radical religious claims. I do not mean that Hirschl is entirely entirely wrong about this, for surely he is describing some fair number of constitutional theocratic states accurately. Yet understood as a global feature of constitutional theocracy, his description seems flawed in at least two respects. First, the notion of court as secularizing agent may be widely applicable but, as Hirschl well knows, is by no means universal.

Second, and more importantly, Hirschl seems to be conflating two different phenomena. The first are traditional and informal forces of law-making and law interpretation, from tribal councils to local priests (i.e., those likely to proclaim Qur’an as constitution), that any state instrument, including a court, would seek to constrain and limit for reasons that anyone who has read her Weber knows well. The second are religio-political movements operating within the state and competing for maximum control over state institutions and apparatus. To assume that these immensely popular movements, which are perfectly comfortable within a national constitutional structure (but still believe Islam to be the solution), will not be able to exercise significant influence over a judiciary seems fanciful and difficult to defend, at least as an empirical matter. It seems that Hirschl therefore describes not so much the successful constraining of religion by forces of secularism so much as the destruction of the traditional mechanisms for the creation of religious law and their replacement with something altogether different – whether the new mechanisms be secular or simply some dramatic mutation of religio-legal norms as to enable them to fit better within a modern state paradigm.

The review proceeds in two Parts. Part One describes Hirschl’s central thesis and explains why it is a fresh and compelling contribution. Part Two describes the ancillary claim that the courts in constitutional theocracies operate as secular agents and some of the problems associated there with.

Lund on the Ministerial Exception

Christopher C. Lund (Wayne State University Law School) has posted "Understanding the Ministerial Exception" (North Carolina Law Review, Vol. 90, No. 1, Fall 2011) on SSRN.

Here is the abstract:

Over the past forty years, courts have developed a body of law known as the “ministerial exception,” under which churches have a sort of constitutional immunity from employment discrimination claims brought by their ministers. Lower courts have all generally recognized this exception to some degree. But its contours are fiercely disputed and the Supreme Court has never clarified its boundaries or even whether it exists at all.

Disagreement also abounds at the more theoretical level, where we lack much of a shared understanding of the purposes behind the ministerial exception. Courts and commentators have often focused on establishing (or rebutting) one or another particular justification for the ministerial exception in one or another particular context. That has been valuable. But with such a narrow focus, we have missed some important aspects of the larger picture.

This article begins by suggesting that the ministerial exception is best conceived not as a single indivisible whole, but as the composition of several different discrete immunities. The piece sees the ministerial exception as having three components - a relational component, a conscience component, and an autonomy component - each with different purposes and different justifications. Deconstructing the ministerial exception in this way, the piece then examines the justifications for each of the various components of the ministerial exception, leading to a general and quite pluralistic defense of the thing that courts now call the ministerial exception.

This piece comes at an opportune time. Nearly forty years after the birth of the ministerial exception in the lower courts, the United States Supreme Court has finally agreed to hear its first ministerial exception case this fall. The case is EEOC v. Hosanna-Tabor, and the Court will have to decide both whether the ministerial exception exists and what it covers. After looking at the ministerial exception in general, this piece concludes by offering specific thoughts on the issues presented in Hosanna-Tabor.

More on Wexler on Endorsement

Regarding Jay Wexler's piece that I blogged yesterday, Marc DiGirolami writes:

Jay argues for an "explicitly negative reference" approach to evaluating government disapprovals.  "[S]tatements, displays, symbols, and other messages that do explicitly refer to and condemn religion" can be invalidated by the obverse of the endorsement test. (4).  I find this approach to endorsement appealing, but if we are to have explicit negative references as the standard, why not restrict endorsement analysis to explicitly positive references?  At present, the endorsement test does not operate on these assumptions; that is, an explicit positive reference is not required for courts to find a violation of the endorsement test.

He notes that "Jay might argue (he does at some points in the piece) that government cannot operate without some implicit disapproval of religion, but it can operate just fine without any explicit or implicit endorsement." 

It all depends what you mean by "religion."  I've argued that when religion is defined broadly, it is impossible for the government to act without (at least indirectly) implicating religious concepts or motivations in its actions.
Read the rest of DiGirolami's post here. 

Melbourne conference on Legal Regulation of Religious Groups

This week, Melbourne Law School will host a conference, "Legal Regulation of Religious Groups, Organisations and Communities," sponsored by Centre for Comparative Constitutional Studies at Melbourne Law School and the International Centre for Law and Religion Studies at Brigham Young Law School.  Details are here.

Wexler on Endorsement Test and Government Disapproval of Religion

Jay Wexler (Boston University School of Law) has posted "Government Disapproval of Religion" on SSRN.  Wexler writes, "In all this hubbub about endorsement, it can be easy to forget that the endorsement test is actually the endorsement slash disapproval test. The Court has always maintained that government may send neither a message of endorsement nor a message of disapproval of anyone’s religion or of religion in general. . . . With the rise of post 9/11 anti-Islamic sentiment, the growth of the so-called “New Atheism” movement, and the growing willingness of government units in predominantly liberal locales to stand up for gay rights in the presence of conservative religious opposition, it has recently become more socially and politically acceptable in certain
contexts for government to actively criticize religious faiths. For this reason, it is now a good time to begin a scholarly conversation about what constitutes an unconstitutional disapproval of religion and what role the anti-disapproval norm should play in overall Religion Clause jurisprudence."

Here is the abstract: 

The Supreme Court’s “Endorsement Test” for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention. In addition to government “endorsement” of religion, however, the test also prohibits the government from sending a message of “disapproval” of religion. The disapproval side of the Endorsement Test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion. In the last few years, however, due to a variety of social and cultural phenomena, several cases alleging disapproval have made it to the federal courts. This, then, is a good time to begin consideration of what the disapproval portion of the Endorsement Test should prohibit. In this Article, I defend the idea that courts apply an “explicit negative reference” test to determine if the government has unconstitutionally disapproved of religion. After explaining and defending that test, the Article applies the test to the cases of alleged disapproval that courts have been asked to consider. The Article concludes by suggesting that the increasing importance of the disapproval portion of the Endorsement Test weighs strongly in favor of courts keeping the Endorsement Test despite the departure of its creator, Justice O’Connor, and the continued criticism leveled at it from courts and commentators.

Hamline's Journal of Law and Religion Symposium, September 23, 2011

Hamline Law's Journal of Law and Religion announces its Twentieth Annual Journal of Law and Religion Symposium on Law, Religion and Ethics for September 23, 2011.  The theme is “When Faith and Law Collide: Revisiting Martin Luther King’s Letter from Birmingham Jail.” Details are available from the Journal's homepage.

Ten Commandments, Sham Secular Purposes, and the Meaning/Purpose Distinction

UNC law prof Gene Nichol has an op-ed about new legislation in North Carolina:

As a minor component of its recent ideological forced march, the legislature passed a bill allowing our public schools to display the Biblical Decalogue. Local administrators are now empowered to highlight "documents ... such as the Magna Carta, the Mecklenburg Declaration, the Ten Commandments and the Justinian Code" that "have formed and influenced the United States legal system."

Since there can have been no conceivable doubt about the legality of hanging the Magna Carta, the Mecklenburg Declaration or the Justinian Code (I wonder how many legislators know what that is?), the statute is designed to provide thin "secular" cover for displaying a central listing of religious tenets. For good-government, non-religious purposes, school children will now be told that the Sabbath should be made holy, that no gods are to be placed before the God of the Old Testament and that "the name of the Lord your God" must not be taken in vain.
One hopes that the legislators attesting to the decidedly secular and civic purposes of the listing didn't, accidentally, "bear false witness."

I wrote about the conundrum of secular purpose and Ten Commandments displays in "The Monument and the Message: Pragmatism and Principle in Establishment Clause Ten Commandments Litigation" (Texas Wesleyan Law Review, online here).  Professor Nichol is concerned about the legislature coming up with a sham secular purpose for the posting of the Ten Commandments.  This is bad from any perspective: if you are a strict separationist, of course, it means the government is disingenuously finding a way around the Establishment Clause.  But even if you believe in the most robust possible view of religion in the public square, you should be troubled by sham secular purpose.  It is, as Professor Nichol notes, a form of bearing false witness and taking God's name in vain.  

Assuming, though, that it is acknowledged that the Ten Commandments had some impact on America, or Western culture, or Middle Eastern culture, and is worth remembering (things that I certainly believe), there is still a problem. The conundrum arises because the Lemon test requires a secular purpose for government action in the first place.  This leads to the curious situation wherein you can only post the Ten Commandments in public if you do not believe that they have any applicability.  As I wrote in my article:

Meaning and purpose should be clearly distinguished. Although religious and secular meanings may coexist, it is rare that religious and secular purposes can, in the way the courts currently use the terms. To gain perspective, let's leave the Commandments for a moment and consider instead a public display on the history of law
that features a copy of the Magna Carta. It includes the clause calling for the elimination of the "fish-weirs" in the Thames. n92 In the normal in-stance at least, we are displaying the Magna Carta for its historical significance in the development of Anglo-Saxon law, not because we today are concerned with the fish-weirs that were in the Thames in 1215. However, the fact that we are posting the Magna Carta, fish-weirs and all, [*407] for a reason quite beyond its face-value message hardly implies that the Magna Carta's statement about the "fish-weirs" is meaningless. It just means that we can display a written document for a reason apart from its prima facie literary meaning without taking away that meaning. So far, so good: by analogy, we can post the Commandments for their historical value without declaring their words meaningless. We may acknowledge
the meaning. Yet the meaning of the text is also distinct from the purpose in posting the document. The purpose of posting the Magna Carta is its historical value in the development of Anglo-Saxon law.

But suppose that the public official posting the display actually believes, as well, that the government must enforce the removal of "fish-weirs" in some local river. The public official believes that the Magna Carta's prima facie literary meaning is relevant, perhaps obligatory, for us to act on today. Now the meaning of the document has become entwined with the purpose for which it was posted. This is the problem with the Commandments: generally, the people who care about the role the Commandments played in history - who care enough to post them in public - care precisely because they believe in the God the Commandments acknowledge. Under neutrality analysis, we may be able to acknowledge that the Commandments have religious meaning. But to take this next step and say, "I believe in, support, and adhere to that meaning," suddenly changes everything.

First, despite professing a "deference" to the professed purposes of the displayers, in practice, courts have not infrequently found the professed purpose to be a "sham" when the displayer's religious beliefs become known. n93 The display would thus fail the purpose prong of Lemon. n94 Second, the courts often employ a "reasonable person" standard to determine if the display has the prohibited effect. n95 This reasonable person is generally well informed of the relevant facts surrounding the display, and if this means that the observer knows of the displayer's religious intent, this may convert an otherwise historical display into an endorsement of religion (failing the "effect" prong of [*408] Lemon). n96 Finally, though it may not effect entanglement, n97 it may send a message of exclusion to non-adherents, n98 thereby failing the endorsement test. n99
To put this conundrum in somewhat different terms, you may display the Commandments for a purpose (such as their impact on legal history) that is distinct from their meaning. But this leaves open the question of whether your purpose also includes the promotion of the Commandment's prima facie message. To answer "Yes" means you support the theistic First Commandment, and courts generally find that this violates neutrality under one analysis or another. n100 But to answer "No" means you are displaying the Commandments without agreeing with them, which for the believer is a violation of the Third Commandment and the duty Scripture tells us we owe to God. It appears, then, that under current precedent, the Christian public official has a choice between constitutional impermissibility and theological impermissibility.

Harvard Law Review: In Memoriam: William J. Stuntz

The Harvard Law Review's tributes to William Stuntz are online here.  Stuntz was a leading criminal procedure scholar and an evangelical Christian.  While not necessarily identified as a "law and religion" scholar, Stuntz's scholarship took his faith seriously.  He is an important figure in the law and religion field.  Beyond this, of course, Bill Stuntz was an extraordinary and inspiring individual.

HT: David Skeel.

DeGirolami on Horwitz's Agnostic Age

Marc O. DeGirolami (St. John's University School of Law) reviews Paul Horwitz's The Agnostic Age: Law, Religion, and the Constitution (Oxford University Press) at The New Republic.

An excerpt from the review:

Horwitz writes convincingly that the prevailing academic approach to law and religion, in which abstractions like equality and neutrality are taken as foundational touchstones for resolving religious liberty conflicts, has led to a stale and unedifying impasse. There were impeccable historical reasons for theorists of religious liberty to assiduously keep their distance from the black dragon of religious truth. Centuries of war and blood-soaked religious persecution are evidence enough. But the “liberal consensus”—one of whose primary tenets is that the state ought to remain resolutely neutral on the nature of the good and the true, and certainly on the question of religious truth—shows signs of strain from without and within. From without, religious people have for some time complained that the naked public square short-circuits any place for religion in public life. From within, assorted nonbelievers charge that liberal neutrality displays a pusillanimous incapacity to destroy what Voltaire knew needed destroying—écrasez l’infâme!

Continue reading here.

Brennan and Brewbaker to author casebook on law and religion

Details here.

Mary Ann Glendon at Emory

"Mary Ann Glendon, Learned Hand Professor of Law at Harvard Law School and former U.S. Ambassador to the Holy See, will deliver the next Harold J. Berman Lecture at Emory University’s Center for the Study of Law and Religion (CSLR) on September 20. "  Details here.