Category Archives: Marc O. DeGirolami

Free Exercise by Moonlight

I have a new article in draft called Free Exercise by Moonlight. It is about the current condition of permissive religious accommodation. It is pervasively lugubrious. Here is the abstract:

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

  1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
  2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
  3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
  4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.

Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.

“It is by obeying the judgments of our predecessors that we are empowered to make judgments of our own.”

At perhaps one click removed from law and religion proper, but still deeply relevant, is Joel Alicea’s superb essay on originalism and “the rule of the dead” (from which I have drawn the title quote) in the latest issue of National Affairs. Alicea’s piece is particularly useful on the necessary connection of obedience to the will of the dead and the concept of written law (and the disconnection between the concept of written law and obedience to the will of the living). A bit more:

By obeying the dead, the living can demand obedience. As Judge Frank Easterbrook once remarked, “Decisions of yesterday’s legislatures…are enforced…because affirming the force of old laws is essential if sitting legislatures are to enjoy the power to make new ones.” That is, “[p]eople accept old contracts and old laws because they know that this is the only way to ensure that promises to them are kept.” We, the living, accept the binding force of laws passed before our time so that our laws will be obeyed, both in our own time and beyond.

This dynamic between the living and the dead not only undergirds written law; it is foundational to a proper conception of popular sovereignty under the Constitution. Indeed, it is at the heart of what Whittington has called the dualist conception of democratic theory. Under this framework, “the people” exist in their sovereign capacity only when they engage in higher lawmaking — the making and amending of the Constitution. This lawmaking is of a higher order, as it sets the rules by which all other laws can be made and sets the limits of what those laws can do. At all other times and for all other lawmaking, ordinary politics is the norm, and in such circumstances, the people do not act as the sovereign — though they retain the power to reassert their sovereignty at any moment through the process of constitutional amendment. This is not to deny, of course, that the people remain the ultimate source of authority in a polity during a time of ordinary politics; it is simply to say that they and their representatives are acting under or subordinate to the rules that the people established in their sovereign capacity.

This conception of popular sovereignty stems from the same kinds of considerations that uphold written law. In the same way that the dead-hand argument is hostile to any form of written law, saying that the people act in their sovereign capacity in everyday politics is hostile to a written constitution. A constitution is meant to guide and limit ordinary politics, and if ordinary politics were the domain of the people acting as sovereign, then every statute would be the equivalent of a constitutional amendment, and the idea of a written constitution would become meaningless.

….

These philosophical assumptions underlying written law are the essence of originalism. We must submit to the commands of the dead in order to govern ourselves, and in order to submit, we must understand those commands according to their original meaning. It would be farcical to claim that we are being obedient to a rule if we arrogated to ourselves the power to change the meaning of that rule. It would be tantamount to telling past generations: “We will obey your laws — so long as they mean what we say they mean.” The rejection of the dead-hand argument is therefore not just about defending the validity of written law in general; it is about defending originalism’s core philosophical assumptions.

Similarly, we see that the argument over the dead-hand of the past is about far more than the viability of originalism. At stake is the idea of written law, of popular sovereignty, and of society as an intergenerational partnership between the living and the dead.

Faith or Tradition? A Bolognese Easter Controversy

Here’s an interesting story about an Italian controversy concerning the giving ofGIOSUE-CARDUCCI a blessing at the public Giosuè Carducci Elementary School in Bologna in advance of Easter. Apparently there is an objection by a parent to the blessing that has generated a law suit against the school. In a lovely exemplar of the privatization of religion, the objecting parent opined, “Everything has a place, and the school is not the place for these blessings.” One wonders whether the public square is the place for San Petronio. And in a clear echo of the “endorsement test’s” concern for offended feelings and excluded sensibilities, there is this: “‘Is it fair that everyone has to see this, even if some students are Muslims, Buddhist or atheists?’ asked Adele Orioli, legal adviser to Italy’s Union of Atheists and Rationalistic Agnostics.” There is also some dispute among the school board members about where the blessing should be given, whether in a central garden location or instead in a less central (and probably danker and less sweet smelling) gymnasium. Finally, there is this from the Reverend Raffaele Buono, who oversees religious education in Bologna’s schools:  “It is not a matter of faith. It is a matter of belonging to a tradition.” Must it really be either/or, Reverend Buono?

Welcome, Italy, to issues that have plagued the United States for the last quarter century! You had your first taste with Lautsi, but believe me when I tell you that these will be sources of limitless acrimony and contention for you. We over here are waiting with bated breath to see whether Bologna will be compelled to rip down its statues of San Petronio and house them in privately owned palestre. (parenthetically, Carducci himself (pictured), a late Risorgimento nationalist writer whose poetry I have generally found to be abominably pompous, would almost certainly have held the Christian blessing in the greatest contempt).

DeGirolami at University of San Diego Law School Conference on Free Exercise

I’m here in lovely and warm San Diego (Mark went east and I went west) attending this conference organized by Larry Alexander and Steve Smith’s impressive Institute for Law and Religion at the University of San Diego Law School. Here is the conference description:

Hosanna-Tabor and/or Employment Division v. Smith?

The Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran School v. EEOC raised crucial questions. Was the decision reconcilable with the doctrine articulated in Employment Division v. Smith? If so, how? Did Hosanna-Tabor represent a passing anomaly or a major new direction in the constitutional jurisprudence of religious freedom? Such questions are still very much with us, and they can be addressed both normatively and descriptively and from a variety of standpoints: conventional legal analysis, history, political science, or political theory. This conference will consider such questions and their significance for the future of religious freedom in this country.

And here’s the abstract for my paper, Free Exercise by Moonlight (more on it by and by):

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate. Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its rhetorical hostility to religious accommodation—its admonitions about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself”—has ironically become more apt as a description of the multiplying number of secular interests deemed legally cognizable than of religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories that expound on the legally cognizable harms—dignitary and otherwise—to third parties that result from religious accommodation. These theories both reflect the enlarged ambit of state authority and defend novel understandings of the limits of religious accommodation. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.

Supreme Court Vacates Seventh Circuit’s Opinion in Notre Dame Challenge to the Contraception Mandate

A noteworthy cert. grant, vacate, and remand (“GVR”) by the Supreme Court yesterday. Notre Dame’s challenge is to the “accommodation” accorded by the Obama Administration to nonprofit organizations with religious objections to the contraception mandate. To say that the Seventh Circuit’s panel decision (authored by Judge Posner, joined by Judge Hamilton, and with a dissent by Judge Flaum) against Notre Dame was deeply skeptical of the claimant’s objection would understate matters. The fact that the Supreme Court has vacated that decision and remanded the case for reconsideration in light of the Court’s Hobby Lobby decision is interesting.

Podcast on Oral Argument in EEOC v. Abercrombie & Fitch

In our latest podcast, Mark and I discuss last week’s Supreme Court oral argument in EEOC v. Abercrombie & Fitch Stores, Inc., the Title VII headscarf case. We analyze the legal issues, discuss implications for religious accommodations generally, and predict the outcome.

Proust, “The Death of Cathedrals”

I am late in posting a notice for this wonderful short piece by Marcel Proust (yes, that one), The Death of Cathedrals, first published in Le Figaro in 1904 and translated for the first time into English (John ChartresPepino). As the introduction explains, the context of Proust’s essay was the strict separationism afoot in France in the early 20th century (culminating in the 1905 “Law of Separation”), and in specific what would happen to France’s cathedrals under the new secular dispensation. Proust was an Agnostic and in some ways that makes his reflections on the subject all the more interesting. But what is truly fascinating is how completely different his views are from the typical American separationist position. Like from another planet (albeit a perfectly inhabitable one). A bit from the beginning:

Suppose for a moment that Catholicism had been dead for centuries, that the traditions of its worship had been lost. Only the unspeaking and forlorn cathedrals remain; they have become unintelligible yet remain admirable.

Then suppose that one day scholars manage, on the basis of documentary evidence, to reconstitute the ceremonies that used to be celebrated in them, for which men had built them, which were their proper meaning and life, and without which they were now no more than a dead letter; and suppose that for one hour artists, beguiled by the dream of briefly giving back life to those great and now silent vessels, wished to restore the mysterious drama that once took place there amid chants and scents—in a word, that they were undertaking to do what the Félibres have done for ancient tragedies in the theatre of Orange.

Is there any government with the slightest concern for France’s artistic past that would not liberally subsidize so magnificent an undertaking? Do you not think that it would do what it did in the case of  Roman ruins for these cathedrals, which are probably the highest, and unquestionably the most original expression of French genius? After all, one may well prefer the literature of other peoples to ours, prefer their music to ours, their painting and sculpture to ours, but it is in France that Gothic architecture created its first and most perfect masterpieces.  All other countries have done is to imitate our religious architecture without ever matching it.

And so, to return to my hypothesis, here come scholars who have been able to rediscover the cathedrals’ lost meaning. Sculptures and stained-glass windows recover their significance, a mysterious odor once again wafts in the temple, a sacred drama is performed, and the cathedral starts to sing once more.  When the government underwrites this resurrection, it is more in the right than when it underwrites the performances in the theaters of Orange, of the Opéra-Comique, and of the Opéra, for Catholic ceremonies have an historical, social, artistic, and musical interest whose beauty alone surpasses all that any artist has ever dreamed, and which Wagner alone was ever able to come close to, in Parsifal—and that by imitation.

Caravans of swells make their way to the holy city (whether it is Amiens, Chartres, Bourges, Laon, Rheims, Rouen, Paris, or whatever town you please, we have so many sublime cathedrals!), and once a year they experience the feeling they once sought in Bayreuth and in Orange: enjoying a work of art in the very setting that had been built for it. Alas, here as in Orange, they can only ever be curious dilettantes; try as they might, the soul of times past does not dwell within them. The artists who have come to perform the chants, the actors who play the role of priests may be learned, they may have imbued themselves with the spirit of the texts, and the Secretary of Education will lavish medals and compliments upon them. Yet, in spite of it all, one cannot help but think “Alas! How much more beautiful these feasts must have been when priests celebrated the liturgy not in order to give some idea of these ceremonies to an educated audience, but because they set the same faith in their efficacy as did the artists who sculpted the Last Judgment in the west porch tympanum or who painted the stained-glass lives of the saints in the apse. How much more deeply and truly expressive the entire work must have been when a whole people responded to the priest’s voice and fell to its knees as the bell rang at the elevation, not as cold and stylized extras in historical reconstructions, but because they too, like the priest, like the sculptor, believed. But alas, such things are as far from us as the pious enthusiasm of the Greeks at their theater performances, and our ‘reconstitutions’ cannot give a faithful idea of them.”

That is what one would say if the Catholic religion no longer existed and if scholars had been able to rediscover its rites, if artists had tried to bring them back for us. But the point is that it still does exist and has not changed, as it were, since the great century when the cathedrals were built. For us to imagine what a living and sublimely functioning thirteenth-century cathedral was like, we need not do with it as we do with the theater of Orange and turn it into a venue for exact yet frozen reconstitutions and retrospectives. All we need to do is to go into it at any hour of the day when a liturgical office is being celebrated. Here mimicry, psalmody, and chant are not entrusted to artists without “conviction.” It is the ministers of worship themselves who celebrate, not with an aesthetic outlook, but by faith—and thus all the more aesthetically. One could not hope for livelier and more sincere extras, since it is the faithful  that take the trouble of unwittingly  playing their role for us. One may say that thanks to the persistence of the same rites in the Catholic Church and also of Catholic belief in French hearts, cathedrals are not only the most beautiful monuments of our art, but also the only ones that still live their life fully and have remained true to the purpose for which they were built.

….

Today there is not one socialist endowed with taste who doesn’t deplore the mutilations the Revolution visited upon our cathedrals: so many shattered statues and stained-glass windows! Well: better to ransack a church than to decommission it. As mutilated as a church may be, so long as the Mass is celebrated there, it retains at least some life. Once a church is decommissioned it dies, and though as an historical monument it may be protected from scandalous uses, it is no more than a museum. One may say to churches what Jesus said to His disciples: “Except you eat the flesh of the Son of man, and drink his blood, you shall not have life in you” (Jn 6:54). These somewhat mysterious yet profound words become, with this new usage, an aesthetic and architectural axiom. When the sacrifice of Christ’s flesh and blood, the sacrifice of the Mass, is no longer celebrated in our churches, they will have no life left in them. Catholic liturgy and the architecture and sculpture of our cathedrals form a whole, for they stem from the same symbolism. It is a matter of common knowledge that in the cathedrals there is no sculpture, however secondary it may seem, that does not have its own symbolic value. If the statue of Christ at the Western entrance of the cathedral of Amiens rests on a pedestal of roses, lilies, and vines, it is because Christ said: “I am the rose of Saron”;  “I am the lily of the valley”;  “I am the true vine.”

Salomone on the Importance of Multilingualism

Our St. John’s colleague, Rosemary Salomone, has written an interesting column for University World News titled “Why English is Not Enough,” which reflects on the importance of language in understanding different cultural responses to events that attract global attention–including the recent, religiously-motivated murders in France. Here is a fragment, and a thought afterward:

Hearing American journalists and political pundits deconstruct the underlying issues was one thing. Hearing the French explain and defend their deepest convictions was quite another, even if one sharply disagreed with the underlying principles or policy outcomes. At the very least it gave grounding for a more informed response to the problems now confronting France’s criminal, educational and social welfare institutions in the wake of these recent events.

As debate on free speech and the press slowly recedes for now, and France’s (and Europe’s) ‘Muslim question’ takes centre stage, these observations give rise to a less obvious though consequential point on language and cultural competence.

Defining moments, like the attacks in Paris, should remind us that language is key to gaining an insider’s view and a sense of the ‘big picture’, which by the way also allows us to critically examine ourselves. Print and broadcast media, as well as the global blogosphere, still speak in many voices and worldviews and they are powerful shapers of ideas and opinions.

Though multilingualism is clearly important in the global economy, we should not underestimate the force of language and intercultural awareness in promoting global understanding and security.

Today it’s French. Tomorrow it could be Spanish, Chinese, Farsi or any other language depending on the vagaries of world events. With terrorism unwittingly binding the free world together, linguistic skills and the cultural doors they open are essential to both digging deep into differences, especially among our enemies, while finding common ground for mutual respect and joint action among present and potential allies.

Read the rest. I quite agree that the knowledge of foreign languages is important for these instrumental, political reasons (as well as for far more important intrinsic reasons, such as reading what the great minds of other civilizations have had to say). One thought that occurs to me on reading Rosemary’s piece, however, is that the instrumental reasons to learn a foreign language may be especially weighty today in the case of European languages like French, German, Italian, Spanish, Dutch, and so on. That is because it is in Europe, more than many other parts of the world, that cultural clashes of the sort we have just witnessed and are probably going to witness in the coming decades are most likely to occur.

The Libertas Project: Year Two

I am delighted to post a notice for two workshops this summer that are part of the excellent Libertas Project, spearheaded by my friend Michael Moreland of Villanova Law School and supported generously by the Templeton Foundation. I was pleased to serve as a moderator (together with Zachary Calo) at the workshop on religious freedom last year, and will do so again this July joined by Zak and Rick Garnett. I have posted details below, but please contact me (or any of the conveners) if you have an interest in participating.

Libertas Project

The Libertas Project at Villanova University School of Law is seeking applications for participation in its 2015 summer workshops on religious and economic freedom. The project will seek to bring together concerns about religious freedom and economic freedom in a framework that situates both topics amid a larger conversation about freedom, law, and virtue. The Libertas Project aspires to broaden the academic and public appreciation for religious freedom as a human good, while also bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society. A more detailed description of the project’s inspiration and goals is below. The Libertas Project is made possible through the support of a grant from the John Templeton Foundation.

To address these issues of religious and economic freedom, the Libertas Project will host a series of summer workshops at Villanova University School of Law. Each workshop will be comprised of approximately 20 participants drawn primarily from law but also welcoming scholars from related fields (philosophy, political science, religion, business, and economics, for example) as well as judges, policymakers, and journalists. The workshops will be structured around a set of common readings on each topic with group discussions, break-out sessions, and meals in order to foster scholarly networks and collaborative projects among the participants.

The dates for the 2015 summer workshops are July 6-8 on religious freedom and July 13-15 on economic freedom. Participants in the workshops will each receive an honorarium of $1500.

The workshop moderators will be Richard Garnett (University of Notre Dame), Marc DeGirolami (St. John’s University), and Zachary Calo (Valparaiso University) on religious freedom and Thomas Smith (Villanova University) and Mary Hirschfeld (Villanova University) on economic freedom.

The workshops will take place at Villanova University School of Law. Villanova is located 12 miles west of Philadelphia, the fifth-largest city in the United States and the second-largest city on the East Coast. The campus is situated on Philadelphia’s suburban Main Line, and Villanova is easily accessible by train, plane, car, or regional public transportation.

Due to limited travel funds, participants are asked to obtain travel funding from their home institutions, but travel scholarships are available.

To apply, please submit a brief statement of interest (and specifying whether you are interested in the workshop on economic freedom or religious freedom) with a current c.v. to the project leader, Michael Moreland, Vice Dean and Professor of Law at Villanova University School of Law (Moreland@law.villanova.edu) by March 1, 2015.

PROJECT DESCRIPTION

The Libertas Project addresses two topics related to freedom in the context of law and religion in American public life: religious freedom and economic freedom.

Religious freedom and economic freedom, though rarely treated together, illustrate both some of the shortcomings and the possibilities of American intellectual life, most especially in American law and legal scholarship. One of the challenges faced in American legal scholarship and political theory on religious freedom is the reduction of religious freedom to constitutional law, with little engagement with theological arguments or empirical research on religion in American public life. The leading casebooks and materials on law and religion – even those most sympathetic to religious views – often contain little engagement with theological sources. The American legal discourse on religious freedom is dominated by an understanding shaped by the constitutional framers and then worked out in U.S. Supreme Court doctrine. While important, such a focus omits what is often genuinely important about religious freedom and why it is worthy of constitutional protection in the first place. In addition to understanding the constitutional tradition, lawyers and policymakers also need to understand religious questions as they arise across theological traditions as well as in the history of political thought and practice.

At the same time, public discourse about economic freedom tends to avoid engagement with religion, resulting in an unnecessarily cramped view of the possibilities for mutual illumination between economic and religious aspirations. In some contemporary schools of thought, human beings are understood solely in terms of narrow economic motives. But if religion can be understood as a school for the cultivation of right desire for the benefit of individuals and the common good, putting religious traditions in conversation with economic theory and practice is critical to the effort to raise the most important questions about the meaning and purpose of economic activity: How does the cultivation of an entrepreneurial spirit liberate human capital for human prosperity in a good society? How does such a society manage risk and reward? How are economic motivations better understood when we place them in theological and social contexts? What is the relationship of the entrepreneurial spirit to the meaning of justice and equality? What resources might religious traditions bring to bear on the meaning of economic freedom?

The Libertas Project seeks to bring together legal, theological, and philosophical approaches in search of innovative answers to difficult legal and policy questions about human freedom, both economic and religious. With law students, legal scholars, and legal practitioners as one of the primary audiences, the insights produced by the project will inspire in current and future lawyers and policymakers a renewed commitment to both moral character development and free markets. The combination of economic freedom and religious freedom promises a society of responsible persons working toward the common good. In sum, the Libertas Project seeks to foster a greater understanding of the ways religious and economic freedom can bring about the development of character that advances the prosperity and health of the good society.

Holt v. Hobbs Podcast

Mark and I have recorded a podcast on this week’s Supreme Court decision in Holt v. Hobbs, the prison beard case. We discuss the facts, the holding, and broader implications for RFRA and religious liberty.