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Friday, April 25, 2014

"More 'Vitiating Paradoxes': A Reply to Steven D. Smith--and Smith"

As I've said here many, many times, I'm a big fan of Steven D. Smith and of his work on law and religion. I don't always agree with it, but I frequently do and I always find it bracing. His latest book, The Rise and Decline of American Religious Freedom, is well worth reading. A lecture he gave on the subject of the book, drawn substantially from the last chapter of the book, will be published shortly by the Pepperdine Law Review. I have one of several replies that will accompany the lecture. It's somewhat awkwardly titled More "Vitiating Paradoxes": A Reply to Steven D. Smith--and Smith, and it's now available on SSRN. Comments are welcome, of course, and I believe Steve will have a response to the replies. Here's the abstract:

This is a reply to Steven D. Smith's Brandeis Lecture, "The Last Chapter?" That lecture is substantially drawn from the concluding pages of his fine recent book, The Rise and Decline of American Religious Freedom. In the lecture and the book, Smith explores what he calls some "vitiating paradoxes" of some of the key concepts that undergird the conventional account of American religious freedom, and argues that those paradoxes may render religious freedom especially vulnerable in an age of increasing liberal egalitarianism. He also offers a competing account of religious freedom, one that involves both a "soft constitutionalism" approach to the Establishment Clause and a revival of some form of "freedom of the church." 

My reply is basically an internal account, supportive in some respects and critical in others. One of the main contributions that Smith has made to law and religion scholarship over the years is his skillful deployment of critical tools to reveal flaws in the underpinnings of Religion Clause law and theory. He is, I suggest, the charter member of the law and religion branch of a rather small but valuable school: Conservative Critical Legal Studies. In this reply, I take his critical views on board and wonder where, if anywhere, the "potentially vitiating paradoxes" that he identifies in the conventional account of religious freedom end; I also apply Smith's critical framework to the competing account of American religious freedom that he offers. In particular, I question his recommendation of some form of "soft constitutionalism" limited essentially to the Establishment Clause; explore the difficulties involved in what I suggest is a growing reconciliation, including among conservatives, to the Supreme Court's decision in Employment Division v. Smith; and ask whether we might not view arguments for "freedom of the church" as a kind of salvaging device for those who favor a "soft" or jurisdictional reading of the Establishment Clause, and who have come around on Employment Division v. Smith, while still seeking to preserve some measure of church autonomy.   

I should add that my observations about "freedom of the church" as a salvaging device are not meant as  an indictment or a charge that it is intentionally being offered for that purpose. (Nor would I assume that some of the recent arguments against it, or against legal doctrines related to it, are offered insincerely or strategically.) I have written repeatedly* and quite supportively about freedom of the church and/or institutional religious freedom. But, as I've written elsewhere, I also think it's a valuable exercise for its friends, and not just its adversaries, to take a critical look at the concept, even (or especially) if they ultimately support it. Similarly, as new (or very old, depending on your perspective) doctrines and arguments emerge in a field, I think it's important to examine how they fit in with the web of existing outcomes and existing or changing doctrines. It's here, I think, that my "salvaging device" argument comes into play. But this can be a more or less organic development rather than a step in some grand, secret plan. With that caveat in mind, enjoy. 

* (Need I add that this book would make a splendid belated Administrative Professionals Day gift?)


Posted by Paul Horwitz on April 25, 2014 at 09:45 AM in Paul Horwitz | Permalink


Rick, I appreciate it, and the caveat is sincerely meant. No doubt there are people who game themselves to a position, but more often, I suspect, it's more a matter of individual arguments and pieces of doctrine shifting and coalescing over time. I think we're pretty clear on disagreeing over aspects of the Establishment Clause. With respect to Smith or something like it, although I'm not reconciled to it I think there are plenty of arguments in its favor; leaving history aside, I think it is at the very least an elegant approach. I do have concerns about how all these multiple pieces fit together at the end of the day, however. Perhaps I could use another phrase besides "salvaging device," which for some will suggest an almost conspiratorial level of intentionality, but I hope I've made clear that's not what I'm aiming at. (Unless that's what's actually going on! Tell your secret cabal I'm on to them!) But of course most of the paper is about Steve, and about how, in an important sense, any critical tools I use in this area are tools I got from him.

Posted by: Paul Horwitz | Apr 25, 2014 2:20:37 PM

Hi Paul -- I appreciate the caveat. =-) As I've said/confessed, my sense is that Smith supplies the correct rule for dealing with arguments that the Free Exercise Clause authorizes judges to carve out religious exemptions from generally applicable laws (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1880084). (I like to think I'm pretty clear-eyed with respect to the risks this rule poses and so I am, at the same time, a supporter of RFRA-type regimes, which I regard as entirely consistent with Smith's rationale.) I also think that a lot of what are regarded as "Establishment Clause" disputes really aren't -- that is, they don't implicate what I take to be the rule that the Clause actually imposes. (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1400202). And, I think that, notwithstanding (and consistent with) these views, that the First Amendment does strongly protect certain matters having to do with religious communities' governance, polity, ritual, teaching, formation, and hiring-and-firing against government interference, "entanglement," and second-guessing (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297586). But -- and conceding all that has to be conceded about the difficulty of self-awareness and the danger of self-deception -- I feel confident that the combination of these various positions does not reflect salvaging or compensation, but rather a conclusion that each of them is, so far as I can tell, correct.

Anyway, great review.

Posted by: Rick Garnett | Apr 25, 2014 1:48:39 PM

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