Religion & Law

I survived the trip down to Villanova (the trip through the Poconos was an adventure) and back (though I had to leave the conference early to beat the weather). The conference was a great success. Martha Nussbaum gave an eloquent and nuanced explication and defense of her relatively new book. The main theme of the book is to put equality at the center in interpreting the religion clauses and to discard the separation metaphor as helpful. Kent Greenawalt gave a characteristically careful, smart, and entirely fair critique and appreciation of Nussbaum?s book. Among other things he raised some questions about Nussbaum?s historical analysis especially a part of her claims about Roger Williams (the part of her book about Williams is worth its price) and his impact. Their disagreements on this were previously aired in the New York Review of Books.

Father Richard Schenck, in an erudite presentation, raised some difficult questions about Nussbaum?s plea for respect rather than toleration, arguing that she had conflated respect for the capacity to make choices with the choices that had been made. He also compared the conception of conscience in Vatican II with Nussbaum?s conception. John McGreevy argued that that Vatican II emphasized the socialization of conscience more than the individualistic form of conscience apparently endorsed by Nussbaum (I doubt she would deny the socially situated self though). McGreevy also made the interesting point that Vatican II was more focused on elaborating the notion of dignity and its relation to conscience than was Nussbaum. Roderick Hills argued that free exercise exemptions should be made by the legislature, not the judiciary (which seemed to depend on a theory of the judicial function more than a theory of the religion clauses). Jesse Choper argued that Hill?s position would shortchange the interests of the minority (putting him on Nussbaum?s side). But Choper departed from Nussbaum in his view of government display of religious symbols (no harm to liberty) and government aid to financial institutions (impairs liberty by coercive taxation). Geoff Stone spoke of illegal purpose in religion clause adjudication in connection with a discussion of gay marriage. Perhaps I misunderstood him but he seemed to say both that a law founded on a religious purpose was unconstitutional and that a law passed with fully adequate secular justifications but prompted by religious beliefs should be unconstitutional. The former seems clearly right and the latter (again I am not sure he meant it) clearly wrong. In any event, he argued that prohibitions against gay marriage had no adequate secular justifications

Clearly this was a conference with outstanding speakers marked by diverse understandings and views. And I had to miss the talks of Patrick Brennan and Rick Garnett as well as Martha Nussbaum?s response to the criticisms piled up over the day. Even missing that, it was a conference I was grateful to attend.