1,914 research outputs found
Judiasm, Pluralism, and Constitutional Glare
No full textThis short essay is part of a symposium issue titled "People of the Book: Judaism's Influence on American Legal Scholarship." The essay is in part a bit of a spiritual memoir. More important, it tries to tie together various aspects of pluralism and existential encounter that have animated much of my scholarly work. The topics touched on include the question of religion-based exemptions in American constitutional law, the complicated relationship of natural law and positive, law, the debate on same-sex marriage, the problem I call "constitutional glare," and the jurisprudence of Jewish law.Please contact Charlotte Schneider ([email protected]) for any questions about this deposit
Master Metaphors and Double-Coding in the Encounters of Religion and State
No full textThis article was originally presented during a conference on “Hosanna-Tabor and/or Employment Division v. Smith” at the Institute for Law and Religion of the University of San Diego School of Law. At its most practical, the article tries to make sense of the puzzle that that motivated the San Diego conference: the dramatic divergence in our law between doctrines of individual religion-based exemptions from otherwise-applicable rules, which are increasingly under conceptual and doctrinal attack, and religious institutional autonomy, which was resoundingly reaffirmed in Hosanna-Tabor as a principle of self-conscious recognition of the authority and juridical dignity of religious institutions.
More fundamentally, though, the article builds on two main themes. First, it argues that the three strands of the jurisprudence of law and religion -- free exercise, non-establishment, and religious institutional autonomy -- are rooted in a common theme or master metaphor: the existential encounter between the state and religion and the vision of religious communities and normative systems as distinct sovereigns. Second, it also emphasizes, the importance to the legal imagination of what I call “double-coding” -- the simultaneous, stereoscopic, and mutually transposing, affirmation of both radical principle and staid doctrine. Double-coding can appear in many places in the law, but it is particularly important in contexts such as the relation of religion and state in which the legal culture is most likely to retreat into a simple-minded solipsism about its own monopoly on authority and juridical dignity. But double-coding can only work successfully if legal doctrine, whether by conscious design or not, is open at least to pointing to something beyond itself.
The article calls on both these conceptual tools -- the master metaphor of sovereignty and the possibility of double-coding -- to try to understand the divergence between the fate of religion-based exemptions and religious institutional autonomy. The article suggests various explanations for that divergence, but focuses on the essentially contingent fact that, even during their heyday, judicial defenses of free exercise exemptions never adequately responded to some fundamental theoretical challenges and (unlike doctrines of institutional autonomy) rarely allowed for the power of double-coding to shape the legal imagination.Please direct any questions about this deposit to me, as the designated depositor. Thank you
Prayer is Serious Business: Reflections on Town of Greece
No full textIn his dissent in Marsh v. Chambers, which upheld the practice of chaplains delivering public prayers in state legislative chambers, Justice William J. Brennan, Jr., observed that “prayer is serious business – serious theological business.” This two-part essay returns to that simple but important insight in discussing the Supreme Court’s recent return to the question of legislative prayer in Town of Greece v. Galloway.
The first part is based on remarks I delivered as part of a panel discussion held several months before the Supreme Court handed down its ruling in Town of Greece. I proposed that the Court should overrule Marsh, or at least not extend its reach to local governmental bodies. But I also argued that, if the Court was unwilling to draw such bright lines, it should resist the temptation to parse individual prayer practices to make sure that they remained inoffensively “non-sectarian.”
The second part of the essay was written after Town of Greece came down. It contends that both the majority opinion and Justice Kagan’s principal dissent failed spectacularly to appreciate that “prayer is serious business.” The majority listed a litany of purposes for public prayer, but neglected to include the most obvious – to pray. And the dissent repeatedly discussed the audiences for various public prayers, but ignored the most obvious intended audience – God. The two opinions are actually remarkably alike in reducing civic prayer to political declarations of identity. For Justice Kennedy, the prayers recited in the Town of Greece reflected a patriotic and inclusive national identity that transcends specific religious expressions. For Justice Kagan, the prayers were sectarian and exclusionary. But, at the end of the day, that is mere quibbling.Please contact Charlotte Schneider ([email protected]) for any questions about this deposit
Natural Law, Equality, and Same-Sex Marriage
No full textThe article proposes a different, more nuanced and responsive, understanding and defense of same-sex marriage. And it suggests how we might be able to transcend the still-divisive debate that lingers on the subject even as the momentum in favor of same-sex marriage has accelerated.
In their advocacy for same-sex marriage so far, proponents have tended to advance a “thin” conception of civil marriage at odds with more traditional views. This thin conception rejects any defining link between marriage and heterosexual procreation. And it resists portraying marriage as grounded in any narrative as substantial as “natural law.”
This article argues that this flattening of the idea of marriage is unnecessary to a defense of same-sex marriage. It is possible to believe that marriage is paradigmatically, even in “natural law,” a heterosexual institution, and also believe that it should be extended to same-sex couples. In fact, the law often extends rules and institutions beyond their paradigms without rejecting the force of those paradigms. A good example is the law of adoption, which accepts the paradigm of biological parenthood, but also accommodates the fact that not all children can or should be raised by their biological parents. The article proposes a structurally similar argument for same-sex marriage, grounded in what I call “analogy of dignity” – maintaining the rich traditional meaning of marriage while also explaining why it should today also be available to same-sex couples.
Just as important, the article suggests that, at the end of the day, this sort of argument from “analogy of dignity” is actually more compelling than arguments based on such reductionist slogans as “freedom to marry” and “marriage equality.” It is situational and contingent rather than detached and universal. It better reflects why many same-sex couples might care about marriage in the first place. And it connects to deep and important values such as fraternity, the Golden Rule, and basic decency.Please direct any questions about this deposit to Charlotte Schneider ([email protected])
Scopes of religious exemption: a normative map
No full textReligious exemptions take a variety of forms, with distinct logical shapes and normative underpinnings. This paper identifies eight ideal types of religious exemptions, grouped into three larger rubrics, representing a series of different analytic and justificatory structures, to help make sense of what might otherwise seem to be mysterious discontinuities and inconsistencies. The paper suggests how the various types can illuminate each other and how surveying the sequence as a whole might say something about the encounter of religion and state and the power of the legal imagination. The payoff or punch line is that the first, most obvious and straightforward, category of religion-based exemptions is also the most radical; that some of the other categories are tamer precisely to the extent that they introduce a wider and more complex range of values; but that the excursion in the end will necessarily come full circle to where it began
Saving Rutgers Camden
No full textIn January 2012, Chris Christie, Governor of New Jersey, announced that the Camden campus of Rutgers, the State University, was to be severed from Rutgers and taken over by Rowan University. Every major political force in the state, Democratic and Republican, elected and behind the scenes, lined up in support of the plan. Nevertheless, Rutgers-Camden faculty, students, administrators, alumni, and trustees, and their allies, vigorously fought the plan, convinced that it made no sense and would be devastating to the campus and higher education in the State more generally. The campaign opposing the merger with Rowan was popular and political, but it ultimately depended on powerful legal arguments grounded in Rutgers’ distinct and complex history. By the end of June, the merger idea had been defeated. As one assistant professor put it, “The bad guys got outmaneuvered by a bunch of nerds.”
This article is a scholarly effort by three faculty participants to make sense of the struggle to save Rutgers-Camden and put it in theoretical context. The article narrates the story of the fight over the proposed merger and carefully analyzes the legal constraints on the plan. It also links the story to important broader questions about legal pluralism, the public/private divide, the relationship between state universities and state governments, and competing visions of the modern university faculty. Through this combination of case study, legal argument, and conceptual inquiry, the article provides a cautionary but hopeful tale about the importance of academic communities defending sound public policy and their own historical rights to self determination against the machinations that can infect our political culture and legislative process.Please direct any questions about this deposit to Charlotte Schneider ([email protected])
How beliefs get in the way of the acceptance of evolutionary psychology
No full textAn opinion article published in the journal "Frontiers in Psychology" by the listed authors including Laura K. Dane (Douglas College Faculty).Final article publishedphilosophyevolutionary psychologysocial psychologybiasesbelief system
[Portrait of David Perry Barr, photographer]
No full textRecto: Barr & Wright, Houston, Tex. Verso: notation ''D. P. Barr, Uncle Dane'' [imprinted] Barr & Wright, Photographs, Houston, Tex
[Portrait of David Perry Barr, photographer]
No full textRecto: Barr, Main Plaza. San Antonio, Tex. Verso: notation, Old man of the moods ''D. P. Barr, Uncle Dane Houstan [sic], Texas'
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