Monday, February 06, 2017
Lewis & Clark Law Review on "Law and Religion in an Increasingly Polarized Society"
The Lewis & Clark Law Review, under the supervision of some superb student editors and Prof. Jim Oleske, has just published a superb symposium issue on "Law and Religion in an Increasingly Polarized Society."* The contents are below and can be found here. The writers include Kathleen Brady, Kent Greenawalt, my colleague Ron Krotoszynski, Marc DeGirolami, Robin Fretwell Wilson, and others. I haven't read all of them yet, but what I have read has been very interesting.
In my rather rough and general opinion, the symposium is highly and obviously timely, and yet comes at a particularly difficult time for those who would attempt to predict the course of law and religion jurisprudence right now, precisely because of both increased polarization (at least in some sectors of the population) and the ways in which the nature and subjects of that polarization have altered dramatically in the past few months. If Hillary Clinton had won the election and depending on the composition of Congress and of political power in the states, we might have expected a more or less linear or steady progression in the kinds of issues and the sorts of debates that had been occurring in the past few years. It's less clear to me that that continues to be true. I agree with those who argue that current events and political outcomes are a continuation of rather than a break with the culture wars; and I think that even if events were taken to mean that the "losers" in that war were suddenly winning and vice versa, but without much else having changed, it would be more or less possible for the discussion to continue along a similar path to the one it had taken. I'm far less certain that that is currently, clearly the case. One needn't conclude that that is either a good or a bad thing, except insofar as unpredictability is itself a major problem. But the issues may change, the intensity and focus may shift from one area to another, and the ability to frame those issues within some kind of "culture war" might need to wait for a clearer picture of where and how that war is being conducted.
My general sense is that even prior to the last few months, there has been some enervation in the field. Law and religion scholars' responses to this enervation have varied. Some have focused their attention on other subjects altogether, outside of law and religion. Some have focused more narrowly on doctrinal questions, sometimes as a way of fighting the legal battle as tenured partisans and sometimes because doctrinalism in such cases can be a way of addressing interesting and pressing "little" questions while avoiding the big questions. (Query how much it is possible to say about the "little" questions if it is the "big" questions that are driving them.) Some may continue writing in the field but shift their attention to other areas, such as standard, good-old-fashioned Establishment Clause questions. (Vouchers!) Some may refocus on larger theoretical questions, abstracting away from particular controversies; I rather hope they do. I think those (and I would characterize some of my recent work in this way) who have tried to stand outside the actual combat and think about the cultural and sociological context of these controversies must perforce remain in a holding pattern on that kind of work until the ground becomes clearer again; at least I think that's the appropriately modest and sensible thing to do, if you're interested in those specific questions. (That said, I have a review essay coming out that at least tries to evaluate where we stand right now and the relationship between recent upsets in the culture wars and law and religion. Like any piece on these issues written between October 2016 and January 2017, it is even more uncertain in its conclusions than usual.)
All this is by way of context and some general observations on the state of the field. To say it's an uncertain time for the field is not to detract from the symposium itself, which contains some excellent contributions and is well worth taking a look at. Congratulations to Lewis & Clark and the journal editors, as well as the contributors, for this fine collection.
Here are the contents:
Kathleen A. Brady
20 Lewis & Clark L. Rev. 1093 (2017)
Marc O. DeGirolami
20 Lewis & Clark L. Rev. 1127 (2017)
Religion and Polarization: Various Relations and How to Contribute Positively Rather than Negatively
20 Lewis & Clark L. Rev. 1157 (2017)
B. Jessie Hill
20 Lewis & Clark L. Rev. 1177 (2017)
20 Lewis & Clark L. Rev. 1201 (2017)
Agora, Dignity, and Discrimination: on the Constitutional Shortcomings of “Conscience” Laws that Promote Inequality in the Public Marketplace
Ronald J. Krotoszynski, Jr.
20 Lewis & Clark L. Rev. 1221 (2017)
Ira C. Lupu & Robert W. Tuttle
20 Lewis & Clark L. Rev. 1265 (2017)
A Regrettable Invitation to “Constitutional Resistance,” Renewed Confusion over Religious Exemptions, and the Future of Free Exercise
James M. Oleske, Jr.
20 Lewis & Clark L. Rev. 1317 (2017)
The Nonsense About Bathrooms: How Purported Concerns Over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns
Robin Fretwell Wilson
20 Lewis & Clark L. Rev. 1373 (2017)
* A personal and embarrassed note, which is sincerely meant as the opposite of a #humblebrag. I was asked to contribute to the symposium, and ended up repaying the editors' kindness and generosity with...nothing. Doubtless recovering from surgery didn't help, and certainly some of the questions of uncertainty that I discussed above contributed to my wavering, but I am still embarrassed at my failure to contribute, aside from my regret at not joining such distinguished company. Surely if there is a personal lesson, it is that it is better to say "no" to an attractive invitation than to say yes and then vacillate. Clearly, judging by the contents of the symposium, I would not have added perceptibly to what is already a very good and broad collection of articles.