In the second book of the 16th century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.”
A few weeks ago, a friend of mine in Religious Studies returned from a conference at a major law school with this report: “Not all, but the majority of presenters agreed that Christians should be marginalized and have their freedom of speech and religion severely restricted because of how hateful their beliefs about sin are and the dignitary harm these beliefs cause others. Am I just young and naive and in reality nothing will come of this, or is it a truly scary reality that leading law professors are saying this?”
I don’t know whether my friend will be reassured or further discouraged if he reads The Rise and Decline of American Religious Freedom, but he will discover one leading scholar in the field who shares his alarm and addresses the matter with purpose and equanimity. Steven D. Smith, Warren Distinguished Professor of Law at the University of San Diego, has composed an essay rather than a treatise or a legal brief, an attempt to get partisans on both sides of the culture wars to see today’s disputes concerning politics and religion in historical perspective. Writing as a man of soft-spoken faith, he aims to begin a conversation, not avoid one, although he is surely aware that those who won’t listen are difficult to persuade.
This next episode of Liberty Law Talk is with Steven Smith on his new book The Rise and Decline of American Religious Freedom. Our conversation explores Smith's challenge to the dominant academic narrative that the Supreme Court's mid-twentieth century decisions imposing secular neutrality vindicated the religion clauses of the First Amendment. In this version, their essence was to secure a government free of religion, tout court. But what if the First Amendment's original public meaning and subsequent practice reflected a very different essence? Our conversation begins with the history of the ratification of the First Amendment. What do we make of…
“As an initial matter, the Clause probably prohibits Congress from establishing a national religion.” –Justice Clarence Thomas, in his concurring opinion in Greece v. Galloway
“Probably”? As if the May 5, 2014 Town of Greece v. Galloway decision, upholding prayers said at the beginning of legislative meetings, didn’t upset strict separationists enough, Justice Clarence Thomas’s radically originalist concurring opinion was enough to bring on shouts for an exorcism. To the contrary, Thomas’s reasoning about the First Amendment establishment clause is the most rational way to preserve liberty, by recognizing the institutional principle of federalism as well as the individual right of religious free exercise. This becomes clear once we see this opinion in light of his earlier, lengthier establishment opinions.
I’m often asked whether it’s challenging to be a Jewish professor at a Catholic college that takes its religious identity seriously, to which my answer is, first, no, and, second, I certainly prefer it to being a Jewish professor at a Catholic college that takes its religious identity casually. In any event, my contributions to the institution’s Catholicity through participating in its intellectual life are warmly welcomed, and to the extent I am involved in ritual events, I treat them like I would treat being a guest in someone else’s home. Still, my colleagues have been accommodating nearly to a fault. In more than one setting, prayers have been ecumenically tailored to my presence—wholly unnecessarily, but considerately nonetheless.
There’s been another naughty pastor. No, not the usual, but instead a minister who mentioned Christ’s name when asked to pray at a town council meeting. (They will do that!) Happily, the offending pastor need not repair to Capri, for the Supreme Court upheld the prayer in yesterday’s decision in Town of Greece v. Galloway. I’m especially delighted, since it means that pastors need not follow the advice I gave them in The American Spectator. Since obscene speech enjoys First Amendment protection, and since it doesn’t raise religious establishment problems, I suggested that pastors might prudently lace their sermons with a few F-Bombs.
In Sebelius vs. Hobby Lobby Stores, Inc. we are asked whether a private corporation has the right to buy health insurance that does not pay for abortion.
Progressives like Erwin Chemerinsky argue that the issue is simple: A private partnership might have the right to buy insurance according to the conscience of the owners but a corporation is a separate entity, created by the state, and, as such, is and must be secular. It is a “secular corporation.”
But why must that be the case?
Frederick Gedicks, who holds the Guy Anderson Chair at Brigham Young University Law School, recently argued in the Washington Post that to permit Hobby Lobby and Conestoga Wood, the two companies challenging the contraception mandate on religious liberty grounds, to receive an exemption from its strictures would be a violation of the Establishment Clause. Gedicks argues that granting the exemption would, in effect, make employees of these companies pay the costs of their employers practicing their religion:
The first day of teaching undergraduate constitutional law, I (not a lawyer) would take a well-regarded law school casebook, and I would ask a student to find the Dred Scott case in it. It was only referred to. Law schools have practical purposes, so why teach a case that is (mistakenly) regarded as completely irrelevant to contemporary law? Yet, unless one knows what the Reconstruction Amendments were presumably repudiating, how can one know what they stand for?
Over at Prawfsblog, Kurt Lash has a post on Incorporation of the Establishment Clause. Kurt did pioneering work on this issue back in the day, work which is rightly esteemed. In the first part of his post, Kurt argues that people at the time of the 14th Amendment understood the meaning of the Establishment Clause differently than they did at the time of the Bill of Rights. And he argues that the 14th Amendment should get the meaning in existence at that time.
While I don’t think we really understand the original meaning of the 14th Amendment, I am sympathetic both to incorporation and to a two track approach to incorporation, with the 14th Amendment incorporated Bill having a different meaning than the original Bill. (As an example, see this paper where I argue that the 1791 Takings Clause does not extend to regulatory takings, but that the 1868 version may.)
But Kurt then takes a further step: