I was very pleased to take part in a conference yesterday at Columbia Law School honoring my old master, Kent Greenawalt, and 50 years of his teaching and writing. Together with Paul Horwitz and Andy Koppelman, I was on a panel involving church and state. Subsequent panels followed on free speech and legal interpretation (chiefly statutory interpretation, which has been Kent’s primary focus historically). I took the liberty of saying something about criminal law as well, yet another area in which Kent has made major contributions, including as one of Hebert Wechsler’s colleagues in revising the Commentaries to the general part of the Model Penal Code. Paul has a nice post on the event.
Here’s a quote of Kent’s I found in a piece written about a decade ago: “Criminal law scholars are much more divided about desirable approaches than they were in the 1950s, and even among centrist scholars, no one person now has the distinctive stature that Herbert Wechsler enjoyed.” Some of my comments considered and adapted that general thought in the context of law and religion scholarship today, where it is also apt for various reasons.
Just three additional notes from the panels. First, on the speech panel, there was some interesting discussion about the plausibility of the Austinian idea of performative utterances (a concept used and applied by Kent in this book)–whether the distinction between performative and non-performative speech holds up, or whether all utterances are in some way performative and so we need instead to focus on the quality of the performative speech at issue (threats of violence are different for regulatory purposes than a comment at an academic conference, though there may not be a big difference for performance purposes). Second, on the legal interpretation panel, Fred Schauer criticized the notion that “public meaning” cannot be ascertained without recourse to someone’s intentions (I believe Larry Alexander among others holds something like the opposite view), though of course one need not subscribe to original public meaning in order to believe that public meaning is coherent. Third, I had never quite realized (though I guess I should have) just how much sympathy Jeremy Waldron has for textualism. Jeremy talked about a seminar in statutory interpretation that he and Kent ran in the late 1990s and it was clear how much they differed in their respective approaches (and how much they enjoyed the debate). Jeremy’s talk included 12 ways in which legislation is qualitatively different from other group expression. One of the 12 was that legislation is “dangerous,” which I thought was an interesting thing to say.
The International Center for Law and Religion Studies and the Oxford Journal of Law and Religion will host the 2015 Oxford Conference next month. This year’s theme is “Magna Carta and Freedom of Religion or Belief.” Here’s a description:
The International Center for Law and Religion Studies, in cooperation with the Oxford Journal of Law and Religion, is hosting its 2015 Oxford Conference, June 21-24, 2015, at St. Hugh’s College, Oxford. The event will begin with dinner on Sunday evening and continue with presentations on Monday addressing the conference theme, Magna Carta and Freedom of Religion or Belief. On Tuesday, participants will visit Runnymede and locations in London, with dinner at Inner Temple, featuring keynote speaker Rt Hon Lord Igor Judge. On Wednesday, all participants are invited to join, once again at St. Hugh’s College, in the Oxford Journal of Law and Religion Academy.
For further details, click here.
I’m delighted to be participating over the next couple of days in this year’s John F. Scarpa Conference on Law, Politics, and Culture at Villanova Law School: Catholic Legal Theory: Aspirations, Challenges, and Hopes. My subject is “Tradition and Catholic Legal Theory.”
I’m delighted to announce that I’ll be a speaker at the Hudson Institute’s upcoming conference, “The Islamic State’s Religious Cleansing and the Urgency of the Strategic Response,” scheduled for May 7 in New York. The conference will be lead by Cardinal Timothy Dolan and Professor Walter Russell Mead; other speakers include Kirsten Powers and Samuel Tadros. Here’s a description:
Nearly a year after the Islamic State swept through northern Iraq and enforced its convert-or-die ultimatum, tens of thousands of Iraqi Christians and members of other ancient religions remain in encampments in Kurdistan and neighboring countries. They subsist on international humanitarian aid and their children lack access to education. Many are losing hope of ever returning to their homes and, with few options to resettle within the region, many are seeking to leave.
Is there any hope that these Christians and other religious minorities can remain in the Middle East?
I’ll be on the first panel, “Genocide and Crimes Against Humanity: the Islamic State’s Impact on Vulnerable Religious Minority Communities.”
For the conference schedule and information about registration, please click here.
On April 20, the Jewish Center in New York will host its annual Hanno Mott Lecture on Jewish Ethics. This year’s lecture is entitled “How Should Our Faith Inform The Laws of A Liberal Democracy?” The lecture will feature a conversation between Israeli Supreme Court Justice Elyakim Rubinstein, Professor Robert George (Princeton University), and Professor Michael Helfand (Pepperdine University School of Law):
The Annual Hanno Mott Lecture on Jewish Ethics is dedicated to exploring the intersection of Jewish Law and secular ethics . Previous lectures have addressed the End of Life debate and the religious and social implication of cloning. This years lecture will highlight Supreme Court decisions both in America and Israel that directly confront religious values in Liberal Democracies and what the relationship between these two modalities should be. This event is free and open to the public.
Details and registration can be found here.
The National Center for Collective Bargaining in Higher Education and the Professions will host its Annual National Conference on “Thinking about Tomorrow: Collective Bargaining and Labor Relations in Higher Education” at the CUNY Graduate Center from April 19-21. St. John’s Law’s Professor David Gregory will moderate one of the conference’s panels, “Catholic Colleges and Universities: Collective Bargaining and NLRB Jurisdiction.” Get more information and register here.
The Faculty of Law at the National University of Singapore is soliciting papers for its upcoming conference, “Regulating Religion: Normativity and Change at the Intersection of Law and Religion.” The conference will be held December 14-15, 2015. A description of the conference follows:
In most eras and cultures, law and religion relate dialectically. Every major religious tradition strives to come to terms with law by striking a balance between the worldly and the spiritual, the structural and the mystical, the rational and the sacred. Every major legal tradition struggles to align its formal structures and processes with the beliefs and values of its people. Thus, while law and religion can be conceptualized as distinct spheres of human life, they do not exist independently but are constantly interacting with and influencing each other.
This workshop will engage emerging scholarship on the influence of religion on legal systems, both historically and currently, and vice versa. Regulation is our key focus. In simplest terms, we will consider how law regulates religion, and how religion responds to such regulations. The more complex question we ask is how the normativity becomes diversified and drives the regulatory dialectics between law and religion after the institutional development of the latter two. The workshop seeks to approach this question in three streams:
- Socio-political norms regulating religion. What social and political assumptions are we making when we make claims about the legitimate role of religion in public debate? What overarching social and political goals underlie how the law deals with issues of freedom of religion and freedom of religious expression? With the resurgence of religion into issues of public debate, how might religious considerations influence the formulation of contemporary legal norms, if at all?
- Constitutional and legal norms regulating religion. What can we learn from the different constitutional legal experiences and contexts of Asia and other parts of the world, given the importance of constitutional structures in framing, defining and governing the interactions of religion and law? What alternative models of arranging state and religion exist vis-à-vis the dominant constitutional model separating state from religion? How has the resurgence of public religion opened up the area of constitutional thinking?
- Religious norms regulating religion. What type of legal structures do religions have? How do religious traditions and communities perceive their interaction with religious laws? What demands do such internal rules make upon their religious faith and worship? Are all traditions ‘religio-legal’, i.e., as having claims that take the form of law over their adherents and others? What varying forms do they take? How do believers negotiate these internal rules and how can religious traditions change within this legal framework?
Information on the conference and paper submission guidelines can be found here.
The Hudson Institute will host a discussion, “Boko Haram, the Islamic State’s West African Franchise,” in Washington, D.C. on March 23, 2015. The panel will feature Nina Shea (Hudson Institute), Bukky Shonibare (Adopt-A-Camp, Nigeria), and Emmanuel Ogebe (Washington Working Group on Nigeria).
Boko Haram swore fealty to the Islamic State earlier this month. The Nigerian Islamist terrorist organization, infamous for the abduction of 276 Chibok schoolgirls last April, has a long record of violent atrocities. Recently, it has increased attacks on marketplaces and public spaces, indiscriminately murdering moderate Muslims and Christians alike. How will this new affiliation impact the operations and reach of Boko Haram?
To assess the humanitarian situation in Nigeria and the global security implications of an alliance between two of the world’s deadliest terror groups, Hudson Institute’s Center for Religious Freedom Director Nina Shea will host a discussion with Bukky Shonibare and Emmanuel Ogebe. Bukky Shonibare is a strategic team member of the #BringBackOurGirls Campaign and the coordinator of Adopt-A-Camp, a program that assists internally displaced persons in Nigeria. She will provide her firsthand account of conditions on the ground. Emmanuel Ogebe, a human rights lawyer from Nigeria, will evaluate the broad impact of the new alliance between Boko Haram and the Islamic State.
Details of the event can be found here.
The Fondazione Studium Generale Marcianum in Venice has issued a call for papers for a conference, “The Legitimate Scope of Religious Establishment, to take place on March 7-9, 2016:
How best to deal with the relationship between law and religion is one of the fundamental questions that every liberal democratic country must encounter. Comparative constitutionalism worldwide sees a large spectrum of state and religion models. The American model of separation, for instance, is an exception in liberal-democratic countries, where one can find a variety of ways in which religions get support from the state. In some democracies there is even explicit acknowledgement of one religion as the official religion of the state.
While it is clear that most democracies reject the idea that religion should be privatized, one is still hard pressed to ask: What are the essential features of establishment regimes? Should any limits be set to the establishment of religion? Are there any means of support that should necessarily be ruled out? May a decent state grant preferential treatment to one religion over other religions (or some of them)? If so, on what legitimate basis could this be done, and in what ways?
This workshop will be devoted to a discussion of these questions and other related topics. We are especially focused on papers that address normative questions about establishment of religion from a particular point of view, but comparative papers are welcome too. The keynote speaker will be Prof. Joseph Weiler.
Scholars are invited to submit a 2-3 page abstract (double-spaced) by April 15th, 2015. Abstracts will be evaluated by the organizing committee and decisions made in May 2015. Please direct all abstracts and queries to: firstname.lastname@example.org or email@example.com.
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.