Matters of Faith, Part II

The lunch and afternoon papers have also been very strong, and quite differently oriented from the morning papers. Our lunch talk was given by our own Prawfsblawger Rick Garnett, who spoke on freedom of religion and the nondiscrimination norm. Rick argued, in obvious contrast to Caroline Corbin's talk, that "discrimination," or perhaps even "wrongful discrimination, is not sufficient to answer difficult questions about how much we should accommodate religious individuals or groups. For one thing, we have to figure out what constitutes "wrongful" discrimination in this context, and that is hardly self-evident, especially where religion is involved. For another, there are important reasons why we might identify some of these matters as simply falling outside government's sphere: as belonging to God, not Caesar. I'm obviously in sympathy with Rick, but I think two challenges for him are 1) to identify and distinguish between coercion and funding/subsidy cases, to distinguish between different forms of subsidy/funding, and to justify church autonomy especially in the latter cases; and 2) his own "reasonableness": it would help to identify precisely what he means and what he wants if he can push on some tough cases.

Amanda Porterfield, a religion scholar and historian at FSU, gave (unsurprisingly) a more historical, less loaded talk. She discussed the ways in which American law and society have always influenced the shape of American religion (for instance, in the development of the prosperity gospel), and vice versa.

Steve Smith of USD is now speaking on "Freedom of Religion or Freedom of the Church?" His argument is that many of the "embarrassments of modern religion clause jurisprudence" result from the supposition that "the First Amendment's religion clauses are about *religion.* They are not. They are about *the church.*" Or at least, that is the historical root of freedom of religion, dating back at least to Canossa. The confusion comes from the ways in which it morphed over time into a concern with individual conscience. Steve does not pretend that it is costless or obvious that we should return from the present approach to one focused on freedom of the church, but suggests that there may be reasons to regret what we have lost.

A terrific set of papers. Indeed, the reason I have bothered with these posts, and the reason I like to read blog posts about conferences in my field even if they were thoughtless enough not to invite me, is so that anyone who is interested in these issues gets to know what people are talking about and, if they want, to write the authors directly to ask for a copy of their papers, so they can get a look at them long before they actually appear in book form many moons from now.