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Monday, January 23, 2012

"Law, Religion, and Kissing Your Sister"

I'm going fairly dark for the next few weeks as I try to finish a book and an article.  In the meantime, it being Monday, what better way to start your week than with some light reading.

I've posted on SSRN a draft paper--decidedly a draft, and comments are welcome--titled Law, Religion, and Kissing Your Sister.  Some background: in October, my law school held a splendid conference called "Matters of Faith: Religious Experience and Legal Response."  The speakers were first-rate and the discussion was excellent.  My job was to comment on my friend and fellow blogger Rick Garnett's paper.  But what I found especially striking about the conference as a whole was that the conference was "tied," as it were, 2-2, with Rick and Steve Smith representing one side of the church-state (or state/non-state) debate and Caroline Mala Corbin and Corey Brettschneider the other.  (A fifth speaker focused on history and religious studies, and so didn't demonstrate the same degree of normativity as the other four.  Go figure; she was the non-lawyer in the group.)  Of course much of the reason for the tie was that it was an artifact of the selection of speakers.  But it seemed to go beyond that, and point to the ways in which, and reasons why, church-state debates become fundamentally deadlocked.  So rather than focus narrowly on Rick's paper, I decided that sometimes it's betta' to go meta, and focused instead on the nature of church-state "ties" themselves.  

As readers of Mitch Berman's recent work know, interesting connections can be made between law and sports.  In this paper, after discussing the "tie game" that resulted from the Matters of Faith conference, I do three things.  1) I talk about standard methods that law and religion scholars employ to tie to break ties in the area of church-state jurisprudence, and why they don't succeed.  2) I compare the treatment of ties in law and sports.  I argue that, precisely because tie-breaking mechanisms in sports are unnecessary and can be wholly arbitrary, it is easier to command general acceptance of them; by contrast, tie-breaking mechanisms in church-state relations are necessary, but they are impossible to justify and cannot justify or capture general agreement.  3) Finally, I discuss how we might feel about this and whether we can or ought to do anything about it.  

I hope students of church-state law--or sports fans!--read and enjoy the paper, and I invite comments and criticisms.  Let me add two reading references for those who are interested, besides my book (which does, however, make a terrific Tu B'Shevat gift).  First, I must recommend a little-noticed and, as far as I can tell, as yet uncited paper by Frank Michelman on the relationship between law and sports or games: "Adjudication as Sport: Rhetoric Astray," 38 Osgoode Hall Law Journal 583 (2001).  2) In my book and in the new article, I talk about the importance, from a constitutional agnostic standpoint, of courts finding language with which to speak to the losers in church-state cases.  Similar lines of argument can be found in Robert Burt's book The Constitution in Conflict and in Emily Calhoun's recent book Losing Twice: Harms of Indifference in the Supreme Court.   

It's a short paper and, I hope, a pleasant way to start your week.  Enjoy!  And wish me luck on cleaning out the Augean stables finishing my book.

P.S.: The title?  A coach once compared ties in sports to "kissing your sister."

Posted by Paul Horwitz on January 23, 2012 at 09:51 AM in Paul Horwitz | Permalink


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Professor, I think the premise that The Constitution will often be in conflict in Church/State issues is based on the false premise that our Founding Fathers did not believe that the Church/State could exist in communion with one another as long as we recognized that our fundamental, inherent, UNalienable Rights have been endowed to us from God and thus the purpose of our UNalienable Rights are what God intended. I agree with you, however, that one can sometimes make an analogy between Law and sports and game, which is probably why I have often thought, in regards to the debate justifying the act of legalized abortion, that it decries logic to suggest that a right to privacy includes the right to harm oneself or someone else, including one's son or daughter, and thus the debate regarding the justification of abortion, becomes merely a game of Charades. Just something to think about as you finish your book. Best Wishes.

Posted by: Nancy D. | Jan 23, 2012 2:06:23 PM

And Godspeed!

Posted by: Nancy D. | Jan 23, 2012 3:01:34 PM

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