Category Archives: Marc O. DeGirolami

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.

 

When Doesn’t a Religious Accommodation “Detrimentally Affect Others”? And a Few Other Holt v. Hobbs Thoughts

Not too much to add to Rick Garnett’s analysis of Holt v. Hobbs. A short and precise opinion from Justice Alito. Here are just a few other questions and comments about the opinion and concurrences:

1. Rick quotes Justice Ginsburg’s one-paragraph concurrence, which states that she only joins the Court’s opinion “on th[e] understanding” that the accommodation here “would not detrimentally affect others who do not share petitioner’s belief.” I guess she felt she had to use the occasion to say something pejorative about Hobby Lobby, which she also quotes. It seems she has bought the line pressed by those who claim that the Establishment Clause prohibits third-party burdens, yet she articulates the standard that they champion rather expansively. There may be a big difference between arguing that the Establishment Clause prohibits religious accommodations that impose “significant burdens on identifiable third parties” (if memory serves, this was the standard favored by academic defenders of this argument) and arguing that the Establishment Clause prohibits religious accommodations that “detrimentally affect” anybody who doesn’t share the claimant’s religious beliefs. I don’t believe the former is a correct reading of the Establishment Clause. But the latter formulation seems a good deal broader. What constitutes a “detrimental effect” under that approach? Might symbolic harms count? I don’t see why they wouldn’t. And as Justice Alito points out, Arkansas made no argument that an exemption was not feasible as a matter of cost or other resources (“the Department has not argued that denying a petitioner an exemption is necessary to further a compelling interest in cost control or program administration”). Had the Department made an argument about cost control (with evidence, which was seemingly in short supply on its side), would any evidence of increased cost (no matter how small) not only been enough to find against the claimant as a RLUIPA matter, but actually have triggered an Establishment Clause violation had the prison accommodated the inmate? Suppose I am a prison inmate who thinks 1/2 inch beards are beautiful as a fashion statement, or because I come from a long line of bearded ancestors and it is important to me to observe the tradition (not so far from the truth in my case, other than the bit about being a prison inmate). Am I not “detrimentally affected” by the inequality of treatment that results from Holt’s accommodation, but not mine? Surely I am. It seems to me that this sort of standard, as well as its more careful academic progenitor, strikes at the heart of these religious accommodation statutes.

2. Following from that point, the heart of these statutes (as Rick also notes) is to provide “very broad protection for religious liberty” or “expansive protection for religious liberty,” as the Court says right at the start of the opinion. This case was an easy one according to that standard, even with a thumb on the scale of deference toward prison administrators, which the Court reaffirms (it rejects “unquestioning deference” but it acknowledges the “respect” that is due the prison administrators’ “expertise”). Should not Hobby Lobby, in which there was no such presumptive deference or “respect” accorded to the government, also have been an easy case according to that standard? Should it at least have been as easy, in light of the absence of deference toward the government in the latter? And yet Holt was unanimous while Hobby Lobby split 5-4.

3. The breadth of protection for religious freedom contemplated by the statutes (RFRA and RLUIPA) and affirmed by the Court was notable, but so was the rigor with which the least restrictive means portion of the analysis was applied. In Holt, the prison argued that its concerns about the shaving of facial hair and escape were unique because of the particular sort of prison it operated, and that its rule was therefore the least restrictive means of securing against the possibility of escape. But the Court rejected that argument for the simple reason that the prison had not done enough to distinguish itself from other prisons that allow facial hair and that had managed these concerns. Other prisons, that is, whose situation was analogous to the Arkansas prison (even if not identical) used less restrictive means to achieve their security interests. The Court looked to the variety of less restrictive means on offer out there in the national universe, and found that the Department should have used one or more of those. This is perhaps a useful elaboration of the least restrictive means test. Unless the government can prove that its burden is truly unique, the Court will look to analogous (even if not identical) solutions to similar problems reached by other governmental entities. If those other solutions seem to have worked without an imposition on religious freedom, then the government has not used the least restrictive means.

Another Unanimous Roberts Court Law and Religion Opinion

The Supreme Court today handed down Holt v. Hobbs, the RLUIPA case involving an Arkansas prisoner who complained of a state prison policy disallowing him to grow a beard in accordance with his understanding of his religious obligations.

The opinion was unanimous, with two separate, short concurrences by Justices Ginsburg and Sotomayor. I’ll save analysis for a later moment (it was a rather straightforward application of RLUIPA in Justice Alito’s majority opinion, though with some interesting language about the individual components of the test).

For now, though, I’ll just note the fact of another unanimous opinion in this area from the Roberts Court. Holt v. Hobbs continues to follow the Roberts Court pattern of either unanimity or 5-4 outcomes in law and religion jurisprudence, as I discuss in greater detail at Part II of this article. The figures are now four unanimous law and religion decisions as against six 5-4 law and religion decisions. The article speculates about a few reasons that we might be seeing this particular voting pattern, contrasting it with the patterns of Supreme Courts past.

Mark and I will have a podcast on the decision in a few days.

The Ideological Fragmentation of Public Law

I am recently back from the annual AALS meeting, during which I attended some of the offerings of the annual “shadow” Federalist Society Conference as well. Both meetings had several worthwhile programs. One of the most interesting features of both conferences was the extent to which political and ideological fragmentation has become more ordinary and prevalent in public law disciplines. I found this to be quite comforting. In this post, I want to explain why, and to describe some of what I saw at the two conferences in this respect. But first, some thoughts on law and religion as a discipline today.

For some time now, I have believed that the political and ideological divides among legal academics in the law and religion field have been growing. They have now reached cavernous dimensions. Paul Horwitz argues in this (superb) piece that law and religion scholars have been in a state of general consensus about free exercise/accommodation issues until extremely recently, but I see things a little differently. The disagreements about free exercise have been manifest at least since I have been studying and writing in the area–about a decade now and probably longer than that. But Paul is right that they have increased dramatically even within that period.

Paul is also right that there was a period of such consensus. But it was a much earlier time. It was the period when, for example, giants including Kent Greenawalt and Doug Laycock and Vince Blasi and Jesse Choper came of scholarly age, the period when Leo Pfeffer’s views were dominant in this area, and only a few outliers arguing for non-preferentialism like James O’Neill existed. One could be a liberal nel vecchio stile and with great complaisance in those days, but still support exotic religions (traditional Christian religions were never really on the agenda), confident in the view that the “great minds” of the past—Jefferson and Madison (Marshall, Adams, and so many others were rarely mentioned)—were on board in spirit. One bought one’s bona fides to argue for relatively expansive free exercise protections (it was the ‘60s and ‘70s, and people should be free to follow their stars and make themselves into whatever they wanted) with iron separationism when it came to establishment. But the bottom line was that one’s Establishment Clause views always drove the boat then, as, it seems to me, they do now. Free exercise in that period was an afterthought—a concession to the unusual and the strange. Sort of like the way many discuss the nature of excuses in criminal law. One is excused for one’s conduct because, notwithstanding its wrongfulness, one makes a concession to human weakness by allowing that one is not blameworthy for that conduct. That’s how religion was perceived—as basically somewhere between odd and wrongful, but not culpable, and therefore excusable conduct which should be accommodated where possible for those in need of such ministrations.

That period is dead. It has been dead since long before Paul or I started writing about these matters. For those who followed in the wake of the liberal consensus, what happened was—again, beginning from an ever-hardening view of what the Establishment Clause demanded—the end of the ‘60s and ‘70s with its taste for exoticism and weird pluralism. In its place arrived a new zest for notions of equality, nondiscrimination, leveling, and so on. To argue for “pluralism” full stop and for its own sake today is something of an anachronism (this comes through nicely in the column Paul reacts to today by Frank Bruni). Exactly what is there of worth about pluralism as an intrinsic good? In the interim from then to now, sexual equalities of various sorts have gone mainstream (they were not so when the earlier consensus reigned; at least one liberal law and religion scholar of the ancien regime only began to support gay marriage in the last decade or so). Equalities of other kinds have taken center stage.

The illusion of consensus could be maintained, for a time at least, but only until the new egalitarian mandarins were challenged. Those challenges have come in the abortion context and other substantive due process areas. With some exceptions, the challenges have largely failed. But they had never come from the religion clauses proper (or their statutory analogues). Now they have. And they have made manifest the instability of the former consensus and the fact of its breakdown over many years. To invoke religious freedom is no longer to appeal to a commonly recognized constitutional freedom; it is to whistle to your favorite mangy dog.

The consequence today is that increasingly, law and religion scholars share far less common ground than they did 40 years ago. Outside their own political/ideological constituency, they have much more work to do to convince one another of their arguments. Indeed, the fact that some scholars squarely within the liberal consensus are now felt to be raving right-wingers is itself a marker of the fragmentation and polarization of the legal academy. Doug Laycock may be many wonderful and admirable things; but conservative is not one of them. These movements within (and also outside) the legal academy sometimes–perhaps oftentimes—make it feel like legal scholars have less and less to say to one another. On occasion, I have felt this to be an unfortunate feature of law and religion scholarship–exhausting and depressing. More work feels political; less work feels scholarly; and so it goes. One begins to long for other sorts of work.

But the panels that I attended last week at the AALS and Federalist Society Conferences began to persuade me of two things. First, ideological fracture is a more general development in public law in the legal academy. Second, that fracture–and all that it brings–has positive as well as negative features.

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