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Abstract:
Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good.

This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument.

The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is religiously based social conflict - or, as the Court put it in Lemon, political . . . divisiveness on religious lines? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the principle it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally?

Working through these questions, I am mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism (is) the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.

First Amendment, Establishment Clause, religious freedom, division, divisiveness, public life, religious arguments, constitutional law, church and state

Abstract:
This Article focuses on what the American theologian and Jesuit John Courtney Murray called a Great Idea, whose entrance into history marked the beginning of a new civilizational era. That idea was libertas ecclesiae, or the freedom of the Church. It served, according to Harold Berman, as the catalyst for the first major turning point in European history and as the foundation for nearly a millennium of political theory. And, this Article suggests, it remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government.

It is tempting to assume or expect that such a great idea must be deeply rooted and comfortably well established in our Constitution's text, history, structure, and doctrine. However, this Article suggests that there might not be, in American constitutional law, a commitment to - or even room for - the libertas ecclesiae principle, richly understood. Instead, it could be that we are living off the capital of this idea - that is, we enjoy, embrace, and depend upon its freedom-enabling effects - without a real appreciation for or even a memory of what it is, implies, and presumes. In our religious-freedom doctrines and conversations, it is more likely that the independence and autonomy of churches, or of religious institutions and associations generally, are framed as deriving from, or existing in the service of, the free-exercise or conscience rights of individual persons than as providing the basis or foundation for those rights. Accordingly, this Article considers Murray's warning that the individual conscience is not equal to the burden of being the keystone of the modern experiment in freedom.

First Amendment, Religious freedom, church and state, church autonomy, Establishment Clause, expressive association, John Courtney Murray

Abstract:
The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called "Blaine Amendments" - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom.

First, the Article considers what might be called the "federalism defense" of the provisions. It concludes that even full-throated support for the Rehnquist Court's so-called federalism "revival" does not require one to regard the Blaine Amendments as courageous efforts by particular communities to provide greater protection to religious freedom, by insisting on a sharper, and more rigid, "separation of church and state." In fact, these provisions might better be seen as representing the failures of particular communities fully to appreciate the nature and implications of religious freedom and liberal pluralism.

Second, the Article sounds a cautionary note concerning the fact that the Blaine Amendments were in large part the product of widespread concern about the political and cultural effects of Roman Catholicism. While it is true that the Blaine Amendments - like much else in the American experience - were anti-Catholic, they are best understood as reflecting more than mere "bigotry." Rather, the Blaine Amendments can usefully be situated in the context of the rich and growing scholarly literature on "civic education," and on the challenges posed by religious faith, teachings, and communities to certain conceptions of political liberalism. Although we are at present confronting the Blaine Amendments primarily as constraints imposed by positive law on local policy choices about school funding, these provisions take us to the heart of perennial questions about statecraft, and soulcraft. They represent, among other things, the enactment into law of certain claims about the aims of education, the prerogatives of the liberal state, the proper scope of religious obligation, and even the nature and end of the human person.

Finally, the Article proposes that Blaine Amendments might most profitably be engaged not simply as rules of positive law, but as theological arguments. The point of this observation is not to assert that the Blaine Amendments' religious meaning is a constitutional strike against them, but rather to enrich our conversations about them. After all, if the Blaine Amendments are not merely legal constraints on state legislatures' funding options, but also claims about the content and proper sphere of religious beliefs, obligations, and loyalties, then it would seem perfectly appropriate to raise constructive, yet unapologetic and unbracketed, religious counter-claims about these matters in response.

Religion Clauses, Blaine Amendments, civic education, anti-Catholicism, school choice, vouchers, federalism

Abstract:
It is difficult in constitutional-law circles to avoid the observation that we are living through a "revival" of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly "revolutionary" Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I and may promote policy goals that might lie beyond the reach of its enumerated powers merely by attaching conditions to the money it spends. Thus, talk of "revolution" notwithstanding, the Spending Power continues to provide practically limitless opportunities for the national government to shape policy at the state and local levels of life and government.

This Article considers whether and to what extent Congress may use its Spending Power - standing alone, or in conjunction with the Necessary and Proper, or "Sweeping," Clause - to create, prosecute, and punish federal crimes. In particular, it examines the challenges to a particular federal anti-corruption statute, and concludes that, even if the Commerce Clause is understood to convey to Congress almost plenary regulatory authority, the power of the purse is not the power to police. That is, a generally applicable federal criminal statute cannot be regarded as a spending condition, and not even the Sweeping Clause is a license for "hungry dog" criminal jurisdiction. What's more, the expansion of federal criminal jurisdiction through spending is inconsistent with the structures explicitly created and reasonably implied by our Constitution, with the values these structures were designed to advance, and with the liberties they were intended to protect.

The Article's doctrinal claims cohere well with leading themes in contemporary constitutional law. There are, for example, rich connections between the Article's arguments about conditional spending, the Sweeping Clause, and criminalization, on the one hand, and contemporary debates in First Amendment law relating to government speech, forum analysis, and expressive association, on the other. In addition, the understanding of the Spending Power defended in the Article serves not only as a complement to, but a crucial component of, the renewed emphasis on mediating institutions and civil society that has been provocatively identified by Professor John McGinnis as the enduring legacy of the Rehnquist Court. The Article closes with the suggestion that whatever "formalism" might be found lurking in its arguments has a worthy pedagogical function as it helps to instill, perhaps, what the "settled disposition on the part of the people in favor of local diversity and prerogative" and the "disciplined love of liberty that transcends the desire for immediate gratification," both of which are required for a "truly robust federalism."

constitution, federalism, criminal law, Rehnquist Court

Abstract:
Proselytism is, as Paul Griffiths has observed, a topic enjoying renewed attention in recent years. What's more, the practice, aims, and effects of proselytism are increasingly framed not merely in terms of piety and zeal; they are seen as matters of geopolitical, cultural, and national-security significance as well. Indeed, it is fair to say that one of today's more pressing challenges is the conceptual and practical tangle of religious liberty, free expression, cultural integrity, and political stability. This essay is an effort to unravel that tangle by drawing on the religious-freedom-related work and teaching of the late Pope John Paul II and on a salient theme in the law interpreting the Free Speech Clause of the First Amendment.

Running through and shaping our First Amendment doctrines, precedents, and values is a solicitude for changing minds - our own, as well as others'. Put differently, the Amendment is understood as protecting and celebrating not just expression but persuasion - or, if you like, proselytism. There are, therefore, reasons grounded in our Constitution and traditions for regarding proselytism and its legal protection not as threats to the common good and the freedom of conscience, but instead as integral to the flourishing and good exercise of that freedom. This same solicitude for persuasion and freedom pervades the writing of Pope John Paul II, who regularly insisted that the Church's evangelical mission does not restrict freedom but rather promotes it. The Church proposes - thereby inviting the exercise of human freedom - she imposes nothing. The claim here, then, is that proposing, persuading, proselytizing, and evangelizing are at the heart of, and need not undermine, not only the freedoms protected by the Constitution, but also those that are inherent in our dignity as human persons.

free speech, proselytism, First Amendment, human rights, Pope John Paul II

Abstract:
John T. McGreevy's Catholicism and American Freedom tells the story of how America or, more particularly, American liberalism has reacted and responded to Catholic claims about the nature and purpose of freedom. It also addresses how these claims were, in turn, shaped by Catholicism's own interactions with, internal conversations about, and adjustment to American liberalism. As McGreevy shows, for many people and for many years, the Roman Catholic Church served as a foil for American values and ideals and vice versa. Indeed, it is no exaggeration to say that American liberalism has often defined and constructed itself precisely in opposition to its image of Catholicism. At the same time, Catholic institutions, practice, and belief developed in response to American and liberal challenges, and American Catholics have oscillated uneasily between sectarianism, segregation, and counter-culture, on the one hand, and engagement, accommodation, and assimilation, on the other.

McGreevy's account enriches our studies and conversations not only about church-state relations, but also and more broadly about education, citizenship, and loyalty. His history could improve present-day academic debates about the nature and role of public reason and the place of religious argument and expression in public life, and more generally he takes us to the heart of perennial questions about the prerogatives of the liberal state, the scope and content of religious obligations, and even the nature and end of the human person.

Religious freedom, democracy, Catholicism, establishment clause

Abstract:
Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when "civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents "hazards" of its own, and its premises - if uncritically embraced - can subtly distort our constitutional discourse.

This Article provides a careful and close examination of the statement's premises and implications, and concludes that, far from being a "purely ecclesiastical concern," the content of religious doctrine and the trajectory of its development are matters to which even a secular, liberal, and democratic government will almost certainly attend. It is not the case that governments like ours are or can be "neutral" with respect to religion's claims and content. As this Article shows, the content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate - that is, to transform - religion and religious teaching. And, it is precisely because such governments do have an interest in the content, and, therefore, in the "development," of religious doctrine - an interest that they will, if permitted, quite understandably pursue - that authentic religious freedom is so fragile.

Religion, first amendment, constitutional law, development of doctrine

Abstract:
The government exempts religious associations from taxation and, in return, restricts their putatively "political" expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well suited nor to be trusted with this kind of line-drawing. What's more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion­i.e., that it is a "private" matter­and of its proper place­i.e., in the "private" sphere, not "in politics"­ it tempts believers and faith communities also to embrace this view. The result is a privatized faith, re-shaped to suit the vision and needs of government, and a public square evacuated of religious associations capable of mediating between persons and the state and challenging prophetically the government's claims and conduct.

Abstract:
In this essay, I consider - in the context of our ongoing debates about capital punishment - the question, "what role ought religious beliefs play in a pluralistic democratic society that often presumes strict boundaries between matters of private faith and political life?" I suggest, first, that we should resist the imposition of such "strict" boundaries between "matters of private faith and political life" and, second, that in the context of our public arguments about the death penalty, engaged Christians should not merely to baptize the policy analyses and preferences of abolitionist or other interest groups, but should instead propose clearly what Pope John Paul II called the "moral truth about the human person." I contend that moral problems - and the death penalty poses, inescapably, such a problem - are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. In other words, as one scholar put it, our attempts at moral judgment tend to reflect our foundational assumptions about what it means to be human. Accordingly, what the public square needs from engaged Christians is a counter-cultural argument about the dignity and destiny of the human person. Such an argument could help our fellow citizens reach the right conclusion about what to do with convicted murderers not so much by dusting the usual arguments with God-talk as by challenging our culture to understand who and what these condemned persons are, and why it should make a difference.

Death penalty, capital punishment, religion

Abstract:
William H. Rehnquist's essay, "The Notion of a Living Constitution," was delivered as the Will E. Orgain Lecture and then published thirty years ago, back when Rehnquist was still a relatively junior Associate Justice. The piece provides a clear and coherent statement of Rehnquist's judicial philosophy, and the Harvard Journal of Law and Public Policy and the Texas Law Review deserve thanks for their initiative and generosity in reproducing it, in memory of his life and work.

This introduction to Rehnquist's essay highlights his view that the Notion of a Living Constitution was to be resisted, not out of pious reverence for the Founders' insight into the moral, economic, and social challenges facing late-Twentieth Century society. Nor did his critique purport to be the product of a tight deduction from premises relating to the very nature of a written constitution. He was not a fundamentalist, or even a thoroughgoing, principled originalist. His aim was not to deny or resist constitutional change, but instead to insist and ensure that We the People, the ultimate source of authority in this Nation, acting through our politically accountable representatives, retain the right to serve (or not) as the agents of and vehicles for that change. What animates Rehnquist's essay - and, indeed, his career on the Court - is not so much a misplaced attachment to stasis, or a slavish adherence to ideological formulae, but a clear-eyed appreciation for tension that can exist between the antidemocratic and antimajoritarian facets of judicial review and the political theory basic to democratic society.

Rehnquist, Constitution, Democracy, Pluralism, Living Constitution, Brennan

Abstract:
The Supreme Court's decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students' speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in Morse is one that the various Justices who wrote in the case never squarely addressed: What is the basic educational mission of public schools, and what are the implications of this mission for officials' authority and students' free-speech rights? Given what we have come to think the Free Speech Clause means, and considering the values it is thought to enshrine and the dangers against which it is thought to protect, is it really possible for the freedom of speech to co-exist with the mission of the public schools? We all recall Justice Jackson's stirring rhetoric in the West Virginia flag-salute case: If there is any fixed star in our constitutional constellation, he proclaimed, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion[.] But, is this really true - could it be true? - in public schools?

Morse, Frederick, Free Speech, Public Schools, Education, Viewpoint Discrimination, First Amendment

Abstract:
The First Amendment's Free Speech Clause - "Congress shall make no law . . . abridging the freedom of speech" - occupies much of the field when it comes to our public debates on matters of law, policy, and morality. Today, in the courts of both law and public opinion, arguments about a huge range of human activities - from cutting-edge scientific research and legal-aid work to video games and unauthorized dancing - are constructed using First Amendment premises, precedents, and jargon. Chief Justice Rehnquist, however, has for the most part resisted, or at least regretted, this free-speech takeover during his tenure on the Supreme Court.

This chapter examines several of Rehnquist's opinions in free-speech cases involving the not-so-clear line between government speech and spending, on the one hand, and government-facilitated private speech on the other. This examination suggests, it is argued, that that Rehnquist's work does not reflect skepticism or hostility toward the core values protected by the Free Speech Clause, as some have charged, but instead reveals a careful appreciation for the fact that the translation and reduction of so many policy questions to free-speech problems comes at a cost. After all, as the civic, social, and political territory controlled by the Free Speech Clause grows, the amount shrinks that is governed democratically and experimentally by the people and their representatives or that is left under the direction of private persons, groups, and institutions. One implication of the free-speech takeover, Rehnquist seems to be warning us, is that difficult policy and other decisions depend increasingly on judges' evaluation of the abstract weight or worthiness of the government's interests, rather than on deliberation, compromise, and trial-and-error by and among citizens and politically accountable public officials.

free speech, Rehnquist, constitutional law, First Amendment

Abstract:
What role do religious communities, groups, and associations play - and, what role should they play - in our thinking and conversations about religious freedom and church-state relations? These and related questions - that is, questions about the rights and responsibilities of religious institutions - are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if we want to understand well, and to appreciate, the content and implications of our constitutional commitment to religious liberty, we need to broaden our focus, and to ask, as Professors Lupu and Tuttle have put it, about the "distinctive place of religious entities in our constitutional order." Are religious institutions special? May and should they be treated specially? If so, how? Why?

Religious freedom, free exercise, establishment clause, church autonomy, expressive association, freedom of speech

Abstract:
Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm?

The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.

parents' rights, religious education, Pierce

Abstract:
America is divided, and religion is divisive. These two claims - usually asserted with both confidence and concern - are the drone notes sounding under so much of what is said and written today about law, politics, religion, and culture. This essay reviews two recent books dealing with religious freedom, pluralism, and conscience: Noah Feldman's "Divided By God: America's Church-State Problem ­and What We Should Do About It" and Kevin Hasson's "The Right To Be Wrong: Ending the Culture War Over Religion in America." Each of these authors hopes for, and holds out the promise of, a less rancorous civil society. And, each of these works puts the freedom of conscience at the heart of the authors' arguments about religious liberty, state action, and the common good. Neither, however, pins his hope on a public square scrubbed clean by judges of religious expression, symbols, and activity.

"Divided by God" and "The Right To Be Wrong" are engaging and rewarding books. Each has its strengths; each is, in some places, provocative, and in others, inspiring. Each is animated by a spirit of charity, and by a welcome and worthy desire to find common ground, to engage fellow citizens on that ground, and to point the way toward a state of affairs and law that is conducive to civil peace and consistent with mutual respect. It is true, as Feldman writes, that our diversity has long and often been called a blessing and a source of strength or balance, and is at the same time a fundamental challenge to the project of popular self-government. Feldman and Hasson are right to remind readers that our response to this challenge need not, and should not, include a demand that religious expression, symbols, and activities be confined, laicite-style, to the private sphere or the margins of our common life. The end-game, though, will not and should not be unity, but respect. As John Courtney Murray suggested several decades ago, given the reality and permanence of pluralism, we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity.

Feldman, Hasson, Divided By God, division, religion, religious liberty

Abstract:
In Roberts v. United States Jaycees, the Supreme Court reversed Judge Richard S. Arnold's decision for the Court of Appeals and held­ - without dissent - that the First Amendment did not shield the Jaycees' men-only membership policy from the non-discrimination requirements of the Minnesota Human Rights Act. The claim in this essay is that Judge Arnold's position and decision in the Jaycees case deserved, and still deserve, more thoughtful and sympathetic treatment. Even some of Judge Arnold's many friends and fans tend to treat as something of an embarrassing lapse or anomalous error his conclusion in that case that, because "the First Amendment . . . must[,] on occasion, protect the association of which we disapprove, the Constitution therefore protected the Jaycees' right not to admit women to full membership".

In fact, though, it was precisely Judge Arnold's civil-libertarian commitments prompted him to cast a skeptical eye on the efforts of government to pursue its own or the majority's agenda at the expense of constitutionally protected rights. For Judge Arnold, governments constrained by our First Amendment and by a respect for the freedom of speech are limited to persuasion, not coercion, when trying to influence and shape the beliefs and expression of citizens and associations. In his view, the same democratic values that underlie our constitutional commitment to equal protection of the laws are the basis for a no-less-fundamental commitment to limited government and a free civil society.

Justice Brennan himself - the author of the Court's opinion in Jaycees and Judge Arnold's former boss - recognized that Judge Arnold has consistently vindicated the First Amendment guarantees of freedom of the press and freedom of speech, even in cases in which the protected expression was controversial, distasteful, or hateful. Judge Arnold's ruling and reasoning in Jaycees, it seems to me, is of a piece with this commendable legacy.

First Amendment, Freedom of Speech, Freedom of Association, Jaycees, antidiscrimination

Abstract:
The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.

How, then, should we understand church-state separation? What is the connection between separation, well understood, and religious freedom? What is the place, or role, of religious faith, believers, and institutions in the political community governed by our Constitution? With respect to these and so many other interesting and important questions, the work of Professor Robert Rodes has been and remains a help, a challenge, and an inspiration.

This essay is an appreciation, interpretation, and application of Professor Rodes's church-state work. In particular, it contrasts the church-state nexus that he has explored and explained with Jefferson's misleading but influential wall metaphor. After identifying and discussing a few of the more salient features of this nexus, it closes with some thoughts about how the leading themes in Rodes's law-and-religion writing can help us better understand and negotiate one of today's most pressing religious freedom problems.

Church & State, Rodes, church autonomy, religious freedom, First Amendment, free exercise, establishment of religion

Abstract:
In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.

The specific goal for this paper is to draw from Deus caritas est some insight into what is a fundamental and - at present - the most pressing challenge in church-state law, namely, the preservation of the Church's moral and legal right to govern herself in accord with her own norms and in response to her own calling. It asks, what does the new Pope's work and thinking, about the future and present state of the Church and her organized practice of love, suggest about the appropriate content and vulnerable state of the rights and independence of religious groups - and of the freedom of the Church?

Church & State, Church autonomy, religious freedom, First Amendment, Benedict, free exercise, establishment of religion

Abstract:
In recent years, several prominent scholars have called attention to the importance and role of "First Amendment institutions" and there is a growing body of work informed by an appreciation for what Professor Balkin calls the "infrastructure of free expression." The freedom of expression, he suggests, requires "more than mere absence of government censorship or prohibition to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it]." The intuition animating this scholarship, then, is that the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of, certain institutions, newspapers, political parties, interest groups, libraries, expressive associations, universities and so on. These "First Amendment institutions" are free-speech actors, but they also play a structural - or, again, an "infrastructural" role in clearing out and protecting the civil-society space within which the freedom of speech can be well exercised. These institutions are not only conduits for expression, they are also "the scaffolding around which civil society is constructed, in which personal freedoms are exercised, in which loyalties are formed and transmitted, and in which individuals flourish.

Similar "infrastructural" claims can and should be proposed with respect to the freedom of religion. Like the freedom of speech, religious freedom has and requires an infrastructure. Like free expression, it is not exercised only by individuals; like free expression, its exercise requires more than an individual with something to say; like free expression, it involves more than protecting a solitary conscience. The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them. Accordingly, the theories and doctrines we use to understand, apply and enforce the First Amendment's religious-freedom provisions should reflect and respect this fact. If we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Professors Lupu and Tuttle have put it, whether "religious entities occupy a distinctive place in our constitutional order[.]"

Church and State, Religious Freedom, First Amendment, Religious Liberty, Free Exercise, Establishment Clause

Abstract:
The big stories from the Supreme Court's 2005-06 Term were about military commissions and enemy combatants, political redistricting and campaign contributions, and the nomination and confirmation - the first in more than a decade - of two new Justices. Largely overlooked in the crush of Court-related coverage was the Term's lone church-state decision, Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, involving the ritualized, but illegal, use by a small religious community from Brazil of a hallucinogenic tea called hoasca.

Strictly speaking, O Centro was not a Religion Clauses case at all. It involved the interpretation and application of a particular statute, the federal Religious Freedom Restoration Act (RFRA). And, the Justices agreed with the courts below that the Act requires the government to demonstrate, in a particularized, more-than-conclusory way, that its refusal to exempt from the scope of the drug laws the otherwise-illegal religious use of hoasca is justified by a compelling state interest.

It would be a mistake, though, move past the decision too quickly, and for at least two reasons. First, it is no small thing that the new Roberts Court - unanimously - has made it clear that the tighter constraints imposed by Congress on the national government really do bind. The Smith case teaches clearly that the political process is the main arena, and politically accountable actors are the primary players, when it comes to accommodating the special needs of religious believers. O Centro is entirely consistent with this teaching. However, it also underscores the point that when that process, and those actors, produce such an accommodation, courts and officials are to take it seriously. Second, it appears that the Justices have, with one voice, rejected the notion that such accommodations amount to an unconstitutional privileging, endorsement, or establishment of religion. Again, the Constitution for the most part permits - for better or worse - governments to regulate in ways that, in effect, burden religious exercise. At the same time, and no less certainly, it allows - and even invites - governments to lift or ease the burdens on religion that even neutral official actions often impose. O Centro affirms that, notwithstanding our constitutional commitment to religious freedom through limited government and the separation of the institutions of religion and government, it is and remains in the best of our traditions to single out lived religious faith as deserving accommodation.

Abstract:
What should lawyers think about and respond to death-row volunteers? When a defendant accused of a capital crime attempts to plead guilty, or instructs his lawyer not to present a particular defense; when a convicted killer refuses to permit the introduction of potentially life-saving mitigating evidence - or even urges the jury to impose a death sentence - at the sentencing phase of a death-eligible case; when a condemned inmate refuses to file, or to appeal the denial of, habeas corpus and other post-conviction petitions for relief; when he elects not to object to a particular capital-punishment method, to call into question his own competence to be executed, or to file an eleventh-hour, last-ditch appeal citing newly discovered evidence of his innocence -what should lawyers do?

These are not questions of merely professional interest, narrowly conceived, for lawyers and judges. That said, the death-row volunteer is of particular interest to lawyers because he poses particularly chilling problems for lawyers. It is suggested in this paper that something is missing from our thinking and conversations about the death-row-volunteer problem: Our arguments - which sound primarily in the register of choice, competence, and autonomy - reflect and proceed from an unsound moral anthropology. That is, they proceed from a flawed account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated. The unfortunate result is that the professed commitment to human dignity that drives and sustains so many capital-defense lawyers is often undermined by these same lawyers' responses to death-row volunteers.

capital punishment, death penalty, death-row volunteers, legal ethics

Abstract:
In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.

In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions ­including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyalties­that is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.

First Amendment, Voluntary Associations, Freedom of Speech, Expressive Association, Education

Abstract:
In a thorough and thoughtful article, Excluding Religion, Prof. Nelson Tebbe asks "whether the government may select religious entities for exclusion from its support programs?" and concludes that, sometimes, it may. "The government," he contends, "need not remain neutral toward religion in its support programs[.]"

In this short response to Tebbe's paper, I first suggest that the reasons Tebbe offers for such exclusion - including "promoting equal citizenship for members of minority faiths . . . , fostering community concord, [and] respecting taxpayers' freedom of conscience", are not particularly strong. Next, I turn to the various "limits" that Tebbe imposes on his permissible-exclusion claim, and attempt to show that, in fact, these limits fit uneasily with the claim they constrain. The aim of this attempt is not to cheer state efforts to - in Tebbe's words - "shape the content of citizens' beliefs through government speech and other means," but instead to warn that the inevitability of such efforts poses a real threat to religious freedom, one that is not likely to be repelled with assurances that the state must act nonpreferentially, or must act with a secular purpose, or must not make theological judgments. If we believe, as Tebbe and I do, that there should be limits on the power, and on the ambition, of governments when it comes to the content of citizens' commitments and the objects of their loyalty, it is essential that we think hard not only about the location of these limits, but also about the reasons for them and the worth of what it is that they protect.

First Amendment, Religion Clauses, Funding of Religion, Establishment Clause, Free Exercise Clause, Separation of Church and State, Religious Freedom

Abstract:
Chief Justice Rehnquist leaves behind a formidable and important legacy in constitutional law. His work on the Court was animated and guided by the view that We the People, through our Constitution, have authorized our federal courts, legislators, and administrators to do many things - but not everything. Because the Nation's powers are few and defined, Congress may not pursue every good idea or smart policy, nor should courts invalidate every foolish or immoral one.

However, for those of us who knew, worked with, learned from, and cared about William Rehnquist, it is his unassuming manner, the care he took to put people at ease, and his evident desire to serve as a teacher and mentor, as well as judge and employer, that are as salient in our memories of him as, say, his re-invigoration of the first principles of our federalism.

For more than three decades, Chief Justice William H. Rehnquist served well the country and the Constitution. Put simply, and in Oliver Wendell Holmes's powerful words, "he live[d] greatly in the law". To his credit, though, Rehnquist's ambition was not so much to be great, but to live well.

Rehnquist, Supreme Court, federalism, judicial restraint, constitutional law

Abstract:
This paper is the author’s contribution to a roundtable conference, held in October of 2008 at Notre Dame Law School, devoted to Prof. Kent Greenawalt’s book, Religion and the Constitution: Establishment and Fairness. It is suggested that Greenawalt’s admirably context-sensitive approach to church-and-state questions might lead us to think that the best course for judges is to find (somehow) some bright-line, on-off “rules” and “tests”, constructed to identify and forbid the most obvious violations of the Religion Clause’s core (whatever that is), and to give up on -- or, perhaps, “underenforce” -- the rest.

Greenawalt, religious liberty, religious freedom, Establishment Clause, judicial review

Abstract:
At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, "does pervasive judicial review threaten to destroy local identity by homogenizing community norms?" The answer to this question is "yes", "pervasive" judicial review certainly does "threaten" local identity, because such review can "homogenize[e]" "community norms", either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of "our federalism" is local variation in laws and values, it is also true that some values have been "homogenized", not by judicial review, but by the ratification of the Constitution, which is the "supreme Law of the Land". True, it is a basic assumption of federalism that local communities may have different values, but it is also a basic assumption of federalism that the national Union is committed to some shared values, that separate communities are bound by some shared laws, and that there were and are reasons for America's distinct communities to come together, to form - in the words of the Preamble - a "more perfect Union."

So, how should the conscientious federal judge, or American citizen, go about trying to find the place where responsible exercise of the judicial power of the United States ends, and unwarranted, offensive, intrusive, homogenizing overreaching begins? Certainly, the line will not always be clear, and there is no point in pretending otherwise. In this short essay, it is suggested that the judicial philosophy of the late Chief Justice, William Rehnquist, provides some help to those who take up the task. It is also suggested that, as Rehnquist appreciated in several of his decisions, judicial review of local legislation is sometimes both helpful and necessary to the task of protecting the institutions, groups, associations, and communities that generate, nurture, test, express, and advocate for the local values and norms that such review is often said to threaten. Put simply, to the extent we care about values-pluralism, judicial review can be a friend, as well as a foe.

Rehnquist, Supreme Court, judicial review, freedom of association, federalism, constitutional law, First Amendment