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Thursday, April 09, 2015

"The Religious Geography of Town of Greece v. Galloway"

I have a new paper up on SSRN. The article, "The Religious Geography of Town of Greece v. Galloway," is forthcoming in the Supreme Court Review. Two notes:

1) Although I take a position on the case itself, the main point of the paper is simply to urge law and religion scholars to make greater use of the literature on geography, and specifically on the geography of religion. Scholars elsewhere in the law have done very interesting things with geography; indeed, the paper was inspired by a talk by Richard Thompson Ford, who among other things wrote an important paper on the relationship between law, geography, and race. Some writers on law and religion have been similarly influenced by geography, and influential in turn: I was particularly indebted to various articles by Adam Samaha, Richard Schragger, and Mark Rosen. But I think church-state law--which often involves matters of jurisdiction, sovereignty, scale, and other matters for which geography is relevant, and whose leading metaphors, such as the "wall of separation," often betray the importance of space and place in this area of law--is especially open to geographical analysis, and that much more work of this sort can be done in our field. In addition to the book by Roger Stump that I linked to above, there is quite a fertile literature on the geography of religion, including its impact on the history of American church-state law, as in this book, and its contemporary relevance, as in this book. Whatever my colleagues think of my answers, I hope they will do more to make geography an important element of the questions they ask. 

2) How pleasant it was to turn to a nice, uncontroversial area of church-state law! Compared to the heated current controversies over religious accommodation, working on legislative prayer felt like a trip to the spa. I have a small, in some ways tentative piece on the Indiana RFRA debate coming out in Commonweal Magazine; the online version is here. As with the Galloway article, I take a position in this piece, but for the most part my own preferred resolution is secondary and I make clear my view that a variety of reasonable positions and resolutions are possible. (That this is so is, to me, one reason, although not a dispositive one, why we should be open to the notion of judicial balancing here.) The main topic is my deep disappointment with some aspects of the public debate so far, which has exhibited all the subtlety, care, and calm that one would expect of a discussion that has played out on Twitter and the many online sites whose main purpose, other than generating clicks, is to rally the already-persuaded.  

Posted by Paul Horwitz on April 9, 2015 at 09:02 AM in Paul Horwitz | Permalink

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