New Article: "A Few Grains of Incense"

I recently posted on SSRN an article titled "A Few Grains of Incense: Law, Religion, and Politics From the Perspective of the 'Christian' and 'Pagan' Dispensations." It's coming out shortly in the Journal of Catholic Legal Studies. It's kind of a sequel to the journal's earlier symposium on Steve Smith's book Pagans and Christians in the City: Culture Wars From the Tiber to the Potomac. The journal's editors were extremely kind and patient with me and I am grateful.

The paper operates from within the Christian/pagan typology Smith uses in the book. (Note that the terms should not be taken wholly literally, at least as he uses them in the modern era, but largely refer to a distinction between what he calls transcendent and immanent views of meaning.) I have my differences with that framework, but I also find aspects of it useful in thinking about the culture wars and about law and religion in something other than a standard religious vs. secular or left vs. right way. In any event, for purposes of the article I was interested in developing certain ideas from within that framework rather than critiquing the framework. (I often find, in workshops and job talks and so on, that I get more personal mileage out of adopting the author's framework and exploring its implications, some of which an author may accidentally or studiously neglect or avoid, than from going at it frontally.)

My goal, which is somewhat of a piece with a couple of other semi-recent articles of mine, was to think about and add some detail to our understanding of the dynamics of culture wars in general and with respect to law and religion in particular. It does not offer any proposals for reform. Although I offer some speculations about the conditions under which rapprochement are most likely, I don't offer much reason to believe that those conditions currently exist, and would add that there may be factors, such as the combination of polarization and social media with epistemic closure and separate social and institutional fiefdoms, that make those conditions less likely to appear. I would also note that since the article was written, some of the observations at the end of the piece about the ways in which the war over religious symbols that Smith describes actually extends beyond religious symbols alone have become somewhat more pertinent.

Here's the abstract:

This Article attempts to provide a schematic look at the dynamics of contemporary culture wars around law and religion in the United States. It proceeds from the framework provided by Steven Smith’s recent book Pagans and Christians in the City and engages with that book, sometimes positively and sometimes critically, but taking Smith’s framework as a given. A key insight provided by Smith is that the Christian-pagan conflict, past or present, had less to do with the belief that the other side was dangerous than with the view that it was obstinately unreasonable in refusing the terms of coexistence offered by the ruling dispensation. Culture wars of this sort thus start not with immediate conflict but with failed compromises. Differing premises and worldviews lead to a misunderstanding of what constitutes a large or small sacrifice, start a cycle of distrust, and lead each side to seek power so that it may be the side to set the terms of compromise rather than the one faced with accepting or refusing it. I examine this dynamic in two areas discussed in Smith’s book: religious accommodation, and wars over symbols. I conclude with an examination of the circumstances under which culture-war peace is most likely to occur, and find little reason for optimism that either currently applies.