Second Annual Law and Religion Roundtable

I've just returned from Chicago, where Northwestern University Law School kindly hosted the second Annual Law and Religion Roundtable.  The co-organizers were Nelson Tebbe of Brooklyn, our own Rick Garnett, and myself, and Andy Koppelman served as Northwestern's able and generous host.  I really can't say enough about the conference.  The list was incredible, comprising many of the most prominent American law and religion scholars (Doug Laycock, Kent Greenawalt, Steve Smith, Steve Shiffrin, Marci Hamilton, Chris Eisgruber, etc., etc.), many more junior but very prominent figures in the field (Adam Samaha, Caroline Mala Corbin, Jessie Hill, Marc DeGirolami, etc., etc.), and some very prominent folks who have written less regularly about law and religion but are helping to shape current debates in the field with their own interventions (most prominently Brian Leiter of Chicago).  The format was excellent: the presenters didn't offer overlong introductions, most of the time was reserved for questioning and dialogue.  It was superb, and I'm grateful to my fellow attendees for teaching me so much.

Two observations about the conference.

 First, books seem to be the order of the day in law and religion.  (I include myself.  Have you read my groundbreaking book The Agnostic Age?  Please do!  See the Amazon link at right.)  We heard presentations of manuscripts from Leiter, DeGirolami, Koppelman, Kathleen Brady, John Inazu, Alan Brownstein, and others, and Rick Garnett is also at work on a book.  I don't know whether this signals a particular desire in the field to consolidate or advance current arguments, or a broader movement in the legal academy back toward books rather than articles, but I was delighted.  I would note that at least some of the people writing books in this area are untenured or relatively junior faculty, which goes against the usual expectation in the legal academy that if one writes a book at all, one should do so only after doing the requisite number of articles for tenure.  So much the better, as far as I'm concerned.

The second is to note two common themes that appeared in many of the papers.  The first was the perennial question, "Is religion special?"  I attribute this interest largely to three people: Antonin Scalia, whose Smith decision continues to prompt efforts to define religion as special to overcome or get around Smith; Chris Eisgruber and Larry Sager (for present purposes, I will treat them as one composite person with an unusually large number of hands and feet), whose  work on Equal Liberty has many of us asking whether equal liberty is all there is in law and religion; and Brian Leiter, whose recent work asking whether, at a foundational moral level, there is a basis for treating toleration of religion differently from toleration of other claims of conscience, has offered a great challenge to the field.

The other common theme, interestingly to me given my own work in the area and my forthcoming book, First Amendment Institutions, was the institutional component of freedom of religion, sometimes discussed under the general rubric of "freedom of the church."  I asked at the conference why people think there is such a resurgent interest in this subject.  Some suggested it is simply because of the general academic need for novelty, given that other doctrinal areas have been picked over so well already.  Others suggested that it is a continuing effort to get around Smith.  Certainly the Hosanna-Tabor case to be heard before the Supreme Court, putting the ministerial exception in the spotlight, helps, and the Northwestern University Law Review Colloquy will be publishing a series of short pieces from the conference about that case.  And I suppose it's possible it simply represents a rearguard action by members of religious groups in light of phenomena like the clergy sex abuse scandal.  But I have noted an interest in this idea from non-religious individuals, or those not strongly affiliated with particular faith groups, as well; and there are echoes of it elsewhere in First Amendment scholarship as well.  I think it is interesting to see the ways in which an institutional focus has captured a disproportionate amount of scholarly attention in current First Amendment scholarship, including law and religion scholarship, and to reflect further on why.  

Again, thanks to all for a great conference.