A Holy Secular Institution

Emory Law Journal, Vol. 58, 2009

Religious arguments have figured on both sides of the debate over same-sex marriage. Some supporters have insisted, however, that, as long as the question at hand is limited to civil marriage, consideration of the religious dimension of marriage is just irrelevant. Thus, the Massachusetts high court, in its Goodridge opinion, wrote: "In Massachusetts, civil marriage is ... precisely what its name implies: a wholly secular institution."

American civil marriage is, to be sure, a secular institution. But the claim that it is a "wholly secular institution" suggests that religious arguments about civil marriage are just confused, guilty of a category mistake.

This article examines the notion that civil marriage is a "wholly secular institution." It concludes that the "secular" and "religious" meanings and institutions of marriage are so intermeshed in our history, legal and religious imagination, and doctrine that trying to wall off "civil marriage" from religious considerations is neither possible nor desirable. The idea of "marriage" is a piece of intellectual and cultural "capital" common to both church and state, and changes in the meaning of that idea would have both secular and religious implications. Moreover, the institutions of "civil" and "religious" marriage are not as easily divisible as many believe. Religious believers are legitimate stakeholders in any debate over the meaning of civil marriage, and the religious dimension of marriage can and should be relevant to the civil polity's understanding of the institution and its own arguments regarding the struggle for same-sex marriage.

All this is not to suggest that religious objectors should have a veto on the recognition of same-sex marriage in civil law. Indeed, this article does not reach any bottom-line conclusion on the marriage controversy. The intermeshing of the secular and religious dimensions of marriage does have practical consequences, which the article discusses. But those consequences cut both ways, in the manner of interlocking opposites. This article's overriding goal is to illuminate the playing field, not to score points for one side or the other.

Keywords: marriage, same-sex marriage, religion, religion and the law, family law, first amendment, establishment clause, equal protection, rational basis analysis, strict scrutiny

Separation Anxiety: A Review Essay on Noah Feldman's 'Divided By God'

This article is a review essay on Noah Feldman's 2005 book, Divided by God: America's Church-State Problem, and What We Should Do About It.

Divided by God is mostly a history. But it is a history with a trajectory, leading to Feldman's view of the current standoff and his proposal for reframing the American dispensation of church and state. The stand-off, as Feldman sees it, is not only between two legal positions, but two movements. On the one side are legal secularists, who insist on a strict separation between government and religion. On the other side are values evangelicals, who want to allow the government to finance the good work of religious institutions and to engage in more religious expression itself. Feldman's proposal is to give a bit to both sides - to tighten limits on the government's financial aid to religion, while loosening limits on non-coercive religious expression by government.

As my essay details, I have doubts about both Feldman's diagnosis and his prescription. The formulation of his proposal strikes me as unclear in crucial ways, and in any event unlikely to produce the peace that Feldman believes it will. More fundamentally, Feldman pays too little attention to the religious undergirding of what he calls legal secularism, as well as the secular forces and sensibilities contributing to what he calls values evangelicalism. Ultimately, any path out of the current debate would require a more complete integration of these complicated cross-currents than Feldman provides. In important ways, Feldman is eminently reasonable, but maybe too reasonable to appreciate fully the radical, indeed theologically radical, meaning embedded in the Establishment Clause.

Nevertheless, Feldman has written a lucid and intelligent book. Together with his earlier work, it is a vital contribution to the ongoing consideration of the role of religion in the contemporary nation-state.

Keywords: religion and law, church-state, establishment clause, first amendment, theology, American history, postmodernism, identity politics, neoconservatism, evangelicalism, secularism, liberalism

Christmas

This paper, which is still in a very early form, looks again at the recurring problem of Christmas and the Constitution. Conventional Establishment Clause analysis of Christmas is built on three propositions: First, Christmas is in a sense two holidays: a Christian celebration of the birth of Jesus, and a secular winter holiday. Creches and the like are symbols of the religious Christmas, while trees and Santa Claus are among the trappings of the secular Christmas. Second, government participation in celebrating the secular Christmas is unproblematic. Third, celebrating the religious side of Christmas does risk violating the Constitution, but embedding the religious element in a secular context can mitigate the infirmity.

Much of the criticism of current doctrine has honed in on the third of these propositions. I want to focus, however, on the premise of a "secular" Christmas on which the first two propositions of the doctrine are built. My argument is that the notion of a secular Christmas, and the assertion that the tree and Santa and so on are secular symbols of that secular Christmas, are both deeply problematic. More specifically, I argue that Santa and the like play a complex, rich, and tension-filled role in the "religious economy" of Christmas, and that we cannot begin to tackle the constitutional problem of Christmas until we unravel that complexity. Santa and the tree, even if they carry little or no propositional content, are "religious capital" - "cultural accessories" to the religious meaning of Christmas. And, paradoxically, they can also, under certain circumstances, take on downright anti-religious meaning. When the government adopts these objects and symbols and practices for itself, the effect is religiously and constitutionally complex. The solution to these problems, however, is itself neither obvious nor straightforward.

Keywords: Christmas, establishment clause, religion, religious capital, secularism, endorsement of religion, first amendment

Take These Words: The Abiding Lure of the Hebrew Bible In-Itself

forthcoming in "Hebraic Political Studies"

The Hebrew Bible is the shared canonical text of Judaism and Christianity. It might even be the central common text of Western civilization. Yet this collection of books is also remarkable for the degree to which its meaning and authority for both believing Christians and believing Jews is so thoroughly embedded in, and even superseded by, later texts - the New Testament for Christians and the rabbinic corpus for Jews.

Nevertheless, over the centuries, in various places and against the backdrop of various contexts, certain persons and movements in both traditions have repeatedly sought to reclaim the authority or religious meaning of the Hebrew Bible in-itself, so to speak, alongside or instead of the Bible’s traditional embedded meaning, in the name of one or another restorationist, reforming, revisionist, or radical agenda. These persons and movements have often been suppressed, sometimes violently. But they keep appearing as a hodge-podge of distinct but oddly similar historical moments - Persian Karaites, Russian Judaizers, Christian Hebraists, Puritans, Calvinists, Reform Jews, Zionists, Old Testament theologians, and many others - to the point that it is fair to say that they represent a consistent, abiding, tendency, a counter-story to the main trends of both Judaism and Christianity.

This Article explores this recurring phenomenon. After a selective historical survey, it collects threads of that history to propose some common themes in the sporadic but insistent return to the Hebrew Bible in-itself. It then explores the complex task of reintegrating the Hebrew Bible-in-itself back into the larger complex of Jewish and Christian tradition and suggests some broader implications of that lure for the place of the Hebrew Bible in Western culture and the distinct, paradoxical, nature of its religious and textual authority.

Omalous Autonomy

Brigham Young University Law Review, Vol. 2004, p. 1715, 2004

The Supreme Court held in Employment Division v. Smith that, in most cases, religious beliefs create no special constitutional right to an exemption from "neutral, generally applicable" laws. Smith represents, according to some commentators, part of a larger move in the Court's religion cases away from acknowledging the specialness of religion and towards emphasizing an overarching norm of neutrality. But still sitting in a corner of religion and law jurisprudence are various doctrines, coming under the general rubric of religious institutional autonomy, by which American religious communities do remain distinctively insulated from the full reach of the neutral, generally applicable laws to which comparable nonreligious institutions are subject. This Article tries to make sense of why, how, and to what extent religious institutional autonomy survives Smith and the apparent pull of "neutrality." The Article's first major part argues that Smith, correctly understood, had less to do with neutrality than with a specific jurisprudential argument that the Court's previous doctrine of religion-based exemptions was an "anomaly" in constitutional law. Whatever one thinks of this conclusion in Smith, the Article demonstrates how it simply does not apply to religious institutional autonomy. Institutional autonomy is in this sense "omalous" rather than "anomalous." The Article goes on to discusses some developments within institutional autonomy doctrine itself, and then to navigate the boundary between autonomy and free exercise in the specific context of church liability for clergy sexual abuse. This last section demonstrates, as has some of my prior work, the importance of looking, not only to constitutional doctrine, but also to the nitty-gritty of how the rest of law - here tort law - tries to make sense of religion. The Article concludes, with self-conscious irony, by emphasizing the importance of generality and neutrality, though in a different sense from that employed in Smith.

Keywords: religion, law, autonomy, torts, Smith v Employment Division, religious institutional autonomy, Jones v Wolf, free exercise of religion, neutrality

Pluralities of Justice, Modalities of Peace: The Role of Law(s) in a Palestinian-Israeli Accommodation

Case Western Reserve Journal of International Law, Vol. 32, pp. 273-285, 2000

This Article was written during the last days of Bill Clinton’s presidency as negotiations toward an Israeli-Palestinian settlement seemed to be on track toward some sort of agreement. The Article responds to the argument made by Professor John Quigley that certain elements of the anticipated compromises on such issues as borders, settlements, displaced persons, and Jerusalem would violate Palestinian rights under international law that were beyond the power of the Palestinian authorities to negotiate away.

My article only briefly responds to Professor Quigley’s reading of international law. Its more important, and theoretically significant, argument, is that assessing the 'legality' of this sort of potential peace agreement needs to go beyond the four corners of black-letter public international law to embrace a more 'legal pluralist' approach that recognizes (1) the status of public international law as itself only one legal perspective among others, (2) the divergent but powerful normative landscapes occupied by the two sides, in all their historic, religious, and nationalistic dimensions, (3) the possibility that resources for reconciliation might be found within those perspectives, and not merely from a vantage point external to them both, (4) the extent to which the norms of public international law can be built from the ground up, so to speak, through the effort to reconcile the opposing parties and their competing normative worlds, and (5) the importance of the aspiration to peace as a legal value in its own right.

Though this Article was written during a time of optimism now shattered by intervening events, its argument about the importance and potential force of a genuine encounter between the normative worlds constructed by the two sides to the conflict might, if anything, be more urgent today as the difficult effort to achieve some measure of peace is slowly and far-from-hopefully resuming.

Keywords: Israel-Palestinian conflict, International Law, Legal Pluralism, Law and Religion, Nationalism, Peace Studies, Negotiations

Flags in Context: A Discussion of Design, Genre, and Aesthetics

Raven: A Journal of Vexillology, Vol. 15, pp. 43-80, 2008

This article appeared in Raven, a journal devoted to vexillology, the scholarly study of flags. In recent years, vexillologists have become increasingly interested in developing criteria for judging the aesthetic quality of particular flag designs. My article gently critiques one such effort - titled "Good Flag, Bad Flag" - for proposing a set of overly simple, dogmatic, rules of flag design. It suggests, instead, a more subtle and historically sensitive approach to the study of flag design and aesthetics grounded in the simple observation that flag design has tended over the centuries to be guided by various distinct styles or genres, sometimes called flag families, many of them borrowed from related disciplines. These genres or styles or families have distinct artistic and political histories, and the article posits that the story of flag design and aesthetics can be told in terms of a continuing process of experimentation and development as various genres get tried out, work well or badly, wax and wane, combine and reconfigure, and - sometimes - get transformed by a moment of brilliant rule-breaking. The article argues that the criteria in "Good Flag, Bad Flag" can best be understood as one flag genre among others, a codification of a more eclectic and autonomous set of modern flag traditions arising out of political and aesthetic developments in the second half of the twentieth century.

More broadly, the article situates the relatively new discipline of vexillology in the space between a hobbyist activity and a scholarly enterprise; relates vexillology to more established fields of applied design such as architecture; and argues for the necessary and mutually reinforcing relationship between aesthetic theory and rigorous social science in the study of any applied art, whether vexillology or any other.

Keywords: flags, aesthetics, design, criteria for applied design, art criticism and social science

Joseph Henry Beale, Jr.

THE YALE BIOGRAPHICAL DICTIONARY OF AMERICAN LAW, pp. 31-32, Roger K. Newman, ed., Yale University Press, 2009

This short entry in the The Yale Biographical Dictionary of American Law, edited by Roger K. Newman, discusses Joseph Henry Beale, Jr. (1861-1943), Royall Professor of Law at Harvard Law School and the founding dean of the University of Chicago Law School. Beale is best remembered for his work on conflict of laws, which was the highest expression of a decidedly formalistic approach to the subject, and the foil for the Legal Realist critiques that eventually overturned that formalism.

Beale's work on conflict of laws spanned much of his career, culminating with his 1935 treatise and with the First Restatement of Conflict of Laws, for which he was the reporter. His approach emphasized mechanical rules based on identifying specific, territorially defined, rights-creating events, and was already the object of sustained attack by the time these publications appeared. Legal Realist opponents battered his notions of territorially defined vested rights, and their critique ultimately led to a revolution in choice of law. More profoundly, Beale's work became for many the emblem of antiquated formalism in legal thinking.

Such criticism aside, however, Beale grounded his approach in sophisticated, if debatable, jurisprudential assumptions. He was a more subtle thinker, widely read in foreign sources and interested in legal theory and history, and often a more wry and ironic writer than the caricature would allow. A surprising number of his writings, which ranged widely from criminal procedure to taxation and municipal corporations, paid heed to social facts and legal adaptation.

Beale was an interdisciplinary thinker in his own way and was more jurisprudentially self-conscious than most American legal scholars of his generation. Indeed, there is no better evidence of his intellectual breadth than his commitment to conflict of laws, which Beale introduced to the law school curriculum and put at the center of legal scholarship.

Keywords: Joseph Henry Beale, Jr., conflict of laws, choice of law, Legal Realism, formalism, legal education, University of Chicago Law School, Harvard Law School, jurisprudence

West Virginia State Board of Education V. Barnette, 319 U.S. 624 (1943)

ENCYCLOPEDIA OF THE UNITED STATES SUPREME COURT, David Spinoza Tanenhaus, ed., Gale, 2008

This entry in the Encyclopedia of the Supreme Court of the United States (David S. Tanenbaus, Editor-in-Chief) discusses the landmark decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

Barnette held that students have a constitutional right to refuse to salute the flag or recite the pledge of allegiance. The case marks an important moment in free speech jurisprudence and in the Supreme Court's treatment of the relationship between individual conscience and the state. It is particularly famous for its rhetorical flourishes, both in Justice Jackson's majority opinion and in Justice Frankfurter's vehement and unusually autobiographical dissent. It also figures importantly in the history of American minority religions and in the continuing struggle to define the fundamental kernel of American identity.

My short essay discusses, among other things, Barnette's relationship to Minersville School District v. Gobitis, 310 U.S. 586 (1940), which it overruled; the decision's major doctrinal import for establishing that the guarantee of free speech embraces, not just the right to speak, but the right to refrain from enforced speech; its much lesser significance to the law of free exercise of religion; the role the case played in the jurisprudential and often personal tension on the Court over questions of judicial restraint and constitutional method; and the different views represented in the majority and dissenting opinions, and very much alive in a continuing American debate, over the nature and central themes of American patriotism and the ability of the American community to move beyond a purely "proceduralist" conception of itself and its deepest values.

Keywords: West Virginia State Board of Education v. Barnette, first amendment, free speech, freedom of religion, right not to speak, flag salute, pledge of allegiance, patriotism, Justice Felix Frankfurter, American values, Jehovah's Witnesses, World War II

Sad Time: Thoughts on Jurisdictionality, the Legal Imagination, and Bowles V. Russell

Northwestern University Law Review Colloquy, Vol. 102, 2008

This short essay comments on the United States Supreme Court's recent decision in Bowles v. Russell, 127 S. Ct. 2360 (2007), and on Professor Scott Dodson's critique of Bowles at 102 Nw. U. L. Rev. Colloquy 42 (2007).

The majority in Bowles held that the federal statutory time limit for the filing of appeals is jurisdictional, and must therefore be enforced literally and mercilessly. The dissent argued that the time limit is not jurisdictional, and need not be enforced literally and mercilessly. My essay expresses no strong view on whether this particular time limit is actually jurisdictional. It does, however, argue that the underlying assumption - that if a time limit is jurisdictional, it is necessarily draconian - is simply mistaken. It treats as mandatory not only the jurisdictional rule itself, but also one particular, literal and merciless, interpretation of that rule. This move is not only entirely unnecessary, it is belied by the treatment of jurisdictional questions in other, less arithmetical, contexts.

More broadly, I argue in this essay, as I did in more detail in an earlier, exhaustive, article,Jurisdictionality, Time, and the Legal Imagination, 23 Hofstra Law Review 1 (1994), that the doctrine of jurisdictional time limits represents a certain neurotic turn in the law. More particularly, in Bowles, both the majority and the dissent fail to embrace the potential of the legal imagination. The majority seems to believe that the only way to respect the importance of jurisdictionality is to construe jurisdictional rules literally. The dissent, meanwhile, ends up chopping away at the rich tradition of the notion of jurisdiction in American law, making no real effort to investigate the roots of the legal ideas it is trying to explicate. Both these errors reflect more general, deeply consequential, and sad trends in American legal reasoning and legal culture.

Keywords: jurisdiciton, jurisdictionality, jurisdictional time limits, federal courts, legal reasoning, statutory interpretation, legal culture, Bowles v. Russell, appeal, 2107, rule 4, frap 4

Exemptions for Religion Contained in Regulatory Statutes

Encyclopedia of American Civil Liberties, Vol. 1, pp. 559-562, 2006

Discussions of the relation of religion and secular law of the United States often center on constitutional controversies arising out of the Religion Clauses of the First Amendment. That narrow focus, however, overlooks the practical and conceptual importance of the thousands of ways in which sub-constitutional sources of law such as statutes and common law rules also play a defining role in mapping the boundaries of civil and religious authority. This encyclopedia entry discusses, in particular, the many federal and state statutes that explicitly provide religious institutions and religiously-motivated individuals with exemptions from otherwise applicable secular law. Such statutes seek, variously, to accommodate religious conscience, recognize the relevance of religious norms, minimize intrusion into religious life, acknowledge religious diversity, adjust regulatory regimes to take religious facts into account, or simply oblige religious interest groups. Exemption statutes have been criticized on various grounds, and sometimes pose particular difficulties, though courts have generally indicated that they are not unconstitutional simply for setting out distinctive legal treatment for religion and religious persons. In any event, their existence and variety is a vital feature of the legal landscape of religion in the United States whose practical significance and larger meaning needs to be appreciated and understood. They also suggest, especially in the light of the recent constriction of the constitutional doctrine of free exercise, a particular legislative capacity, not only to respect religious conscience but to recognize, in an almost political sense, the diversity and dignity of non-state normative perspectives.

This entry does not attempt an exhaustive account of statutory exemptions. It does try to provide a framework for considering a range of examples, and to suggest how such provisions illuminate the law's effort to understand and accommodate the reality of religious life.

Keywords: Religion, Religion and Law, Free Exercise Clauses, Establishment Clauses, Statutes, Statutory Exemptions, Religion-Based Exemptions, RFRA, RLUIPA, neutrality

Hernandez V. Commissioner of Internal Revenue, 490 U.S. 680 (1989)

Encyclopedia of American Civil Liberties, Vol. 2, pp. 761-762, 2006

This piece is an encyclopedia entry on Hernandez v. Commissioner of Internal Revenue. Hernandez is best known as a leading United States Supreme Court decision on taxation and nonprofit organizations. It is also important, however, for the questions it raises about both the law's treatment of unconventional religious movements and its broader conceptualization of religion itself.

In Hernandez, the Supreme Court upheld the Internal Revenue Service's rejection of charitable deductions claimed by members of the Church of Scientology for payments they made for practices of the church known as "auditing" and "training." The Scientologists contented that the fees, although fixed in amount and required to obtain those services, were similar to other sorts of religious payments whose deductibility the IRS had long allowed, including pew rents, tithes, and mass stipends.

The Court's statutory analysis held that, to qualify as contributions or gifts, payments cannot be made as part of a quid pro quo in expectation of a good or service. Moreover, the Court rejected the Scientologist's statutory and constitutional arguments that this analysis is inappropriate to payments made for purely religious benefits.

As noted, Hernandez acutely exposed some of the complexities in the law's understanding of religion. Nonprofits law has always classed churches as "charities." In some respects, though, they more closely resemble "mutual benefit" organizations such as social clubs, and payments by believers to their churches - whether part of a formal quid pro quo or not - often look more like club dues than gifts. Nevertheless, the law's assignment of charitable status to all churches rests less on an empirical claim than on an intricate set of considerations, including both a respect for religious autonomy and a healthy reluctance to ascribe undue legal significance to the considerable differences among churches in their practices and modes of organization.

Keywords: taxation, nonprofits, law of charities, charitable deductions, religion, Free Exercise of Religion, Establishment Clause, Church of Scientology, Scientologists, statutory construction, statutory treatment of religion

Zablocki V. Redhail, 434 U.S. 374 (1978)

Encyclopedia of American Civil Liberties, Vol. 3, pp. 1811-1812, 2006

This piece is an encyclopedia entry on Zablocki v. Redhail. Zablocki is one of a handful of modern Supreme Court cases, the most famous being Loving v. Virginia, exploring the constitutional right to marry. Zablocki stands out, however, because it provokes this central question: In what precise sense is marriage, by some accounts a purely positive creation of the state, a constitutional right?

Zablocki concerned a challenge to a Wisconsin statute that forbid residents with support obligations to non-custodial minor children from marrying unless they could demonstrate that they were complying with those obligations. Justice Marshall's majority opinion approached the case as an equal protection problem, holding that the freedom to marry was "fundamental" for equal protection purposes and that the state statute could not survive strict scrutiny. The Court's opinion, however, skirted the question whether the "fundamental" right to marry was a basic entitlement, like the right to speech, or only a right of equal access. Some of the other opinions, though, in particular Justice Stewart's concurrence in the judgment, faced this issue more directly. Stewart argued that the case did not involve equal protection at all, but rather a liberty interest protected as a matter of substantive due process. He also wrote that, although States could exercise their traditional power to regulate marriage, and could even prohibit some marriages entirely, "there is a limit beyond which a State may not constitutionally go."

The issues raised in Zablocki echo in contemporary debates about marriage. Most obviously, they are crucial to whether there might be a right to same-sex marriage. More intriguingly, since some commentators have argued that the government should abolish civil marriage entirely, it has now become a matter of more than theoretical interest whether such a move would be constitutionally permissible.

Keywords: Marriage, Same-Sex Marriage, State regulation of marriage, Civil Unions, Equal Protection Clause , Due Process Clause, Fundamental Rights, Substantive Due Process, Natural Rights Jurisprudence, Strict Scrutiny