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Sunday, April 11, 2010

The Peril of Common Names

My friend and former teacher Mike Dorf knows something about the peril of common names.  When he taught at Columbia, he was not even the most famous Michael Dorf in New York: that honor belonged to the Michael Dorf who founded the Knitting Factory.  Even in legal academia, there's someone named Michael Dorff, who teaches at Southwestern -- "West Coast Mike," as I've always thought of him.  

I mention this because East Coast Mike writes on his blog that Justice William O. Douglas's "opinions about religion manifested a view that it is generally a force for good that should be accommodated," and that "in free exercise cases, his esteem for religion and spirituality led him to an accommodationist position."

This is not completely untrue -- Mike cites some relevant cases -- but it's not the whole truth either.  Douglas also wrote a dissent in Wisconsin v. Yoder, one that had a decidedly anti-accommodationist tenor; and it must be said that his view of the Catholic Church did not exactly exude the sense that it was "a force for good that should be accommodated."  But, in fairness, Bill Douglas is a pretty common name.      

Posted by Paul Horwitz on April 11, 2010 at 09:01 PM in Paul Horwitz | Permalink


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Whoops -- I see Mike previously quoted exactly the statement that I did from Douglas's Yoder dissent. Further evidence of agreement.

Posted by: Marc DeGirolami | Apr 12, 2010 12:53:38 PM

Mike, thanks for your comment. It's a pleasure to engage with you -- the one and only Dorf (the prime Dorf, or master Dorf) so far as all matters constitutional are concerned.

I took your "religulousness" category in the original post to include general positive feelings toward religion, whether in the EC or FE context, because you cited to Justice Douglas's "Supreme Being" statement in Zorach, an Establishment Clause case. The Supreme Being statement aside, I simply don't see Justice Douglas's general friendliness toward religion, even in general rather than across the board, but maybe there are such instances. But I certainly do agree that Justice Douglas espoused and imposed something like a consistently and highly individualistic Protestant liberal theology in his Religion Clause jurisprudence. See, e.g., his statement in his Yoder dissent that "[R]eligion is an individual experience."

Posted by: Marc DeGirolami | Apr 12, 2010 12:48:11 PM

I'm also cross-posting some of this as a comment on my original post:

Paul cites Yoder
[ http://tinyurl.com/y2yq6oj ]for the proposition that J. Douglas was not consistently accommodating of religion. Yes and no. Douglas's position in Yoder was that because of the potential for conflict between the religious views of parents and children, the Court should not simply accept the claims of the parents as speaking for the children. "Religion is an individual experience," he explained. But even there, Douglas made clear that he disagreed with what would eventually become the Smith rule. He wrote in Yoder: "The Court rightly rejects the notion that actions, even though religiously grounded, are always outside the protection of the Free Exercise Clause of the First Amendment. In so ruling, the Court departs from the teaching of Reynolds v. United States." In other words, Douglas took what goes in the academic literature as an "accommodationist" position, and that is all I meant by using the term in my post.

More broadly, I agree with Paul that Douglas's views, here as elsewhere, were quirky. The consummate rugged invidualist, it's not surprising that his notion of religion would be individual-focused. We might say that he favored protecting the individual exercise of religious rights rather than the institutional prerogatives of religions.

Marc: Please note that I said Douglas believed that religion "is generally a force for good that should be accommodated." There are two crucial points in that sentence: 1) "generally" admits of exceptions; and 2) as noted just above in my response to Paul, "accommodating" religion has a particular meaning in Free Exercise jurisprudence. As I said in the post itself, Douglas took a separationist line in Establishment Clause cases. There we can see a manifestation of his hostility to the power of religious institutions.

But maybe both of you guys mean to be criticizing some other Mike Dorf.

Posted by: Mike Dorf | Apr 12, 2010 11:56:01 AM

But when it comes to Douglas' opinions, you never can be quite sure that he believed what he was writing. (Compare his personal life with his paean to marriage in Griswold). It's one of the things that makes him such an interesting character.

Posted by: Neil Richards | Apr 12, 2010 9:59:22 AM

With all due respect to Mike, Justice Douglas did not believe that religion was a "force for good." His dissenting opinion in Board of Education v. Allen is quite clear that religion -- and particularly Roman Catholicism, which he always viewed with deep suspicion -- has the backdoor power to shape the plastic mind of children and therefore needed to be watched like a hawk. At least in Allen, when the subject was "Catholic textbooks" that "contain the seeds of creed and dogma," he was a church-state separationist.

Posted by: Marc DeGirolami | Apr 12, 2010 6:59:19 AM

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