Balkinization: The State of Scholarship on Religion and Constitutional Law

The State of Scholarship on Religion and Constitutional Law

Mark Tushnet

Paul Horwitz has a typically judicious post on the annual Law and Religion Roundtable, which I've attended a couple of times. I did some work on constitutional law and religion in the 1980s and early 1990s, and then stopped because the field had, in my view, atrophied -- nothing new was being said either by the secular liberals (or people whose religious beliefs led them to conclude that the constitutional law of religion was secular liberalism) or by the Catholics, two groups that dominated the scholarship. I got back into thinking about the field, though not writing much in it, about a decade and a half later because there had been an influx of younger scholars -- the regular participants in the Roundtable Paul describes -- who were doing exciting and innovative work, mostly, in my view, because they took religion a lot more seriously than had been the case with the earlier scholarship.

A fair amount of the work of those scholars, and other new participants in the field, continues to be extremely interesting, in my view -- although often wrong (but what's new about that?). The discussion of "Freedom of the Church" provoked in part by Hosanna-Tabor, for example, is quite provocative. But, as Paul also suggests, a fair amount of the recent work of these scholars is intellectually (almost) homogeneous: They agree too much with each other. My own take on the scholarship is that -- in contrast to an earlier generation's work -- it takes religious liberty as more central to the field than nonestablishment. But I don't want to impute too many views to the group -- just report my sense that there has been a convergence of views of the sort that led to the atrophy of scholarship I mentioned earlier. To put it in the kind of political terms to which I am attracted: There's been a convergence to the mushy center -- center-right and center-left, with some strong voices on what in this context has to be called the conservative side, particularly in connection with so-called complicity claims, and almost no representation in the recent scholarship done by the Roundtable's regular or even somewhat irregular participants of strong non-establishment views.

One reason for the convergence may be demographic near-homogeneity in this group. My somewhat snarky way of putting the demographic point is that my family, when we get together for Thanksgiving dinner, is more diverse in terms of gender, sexual orientation, and even religion than the group attending the Roundtable. (What we most obviously lack is a liberal Catholic and an evangelical Protestant, but hey, there are some limits to the size of our dining room.) It's their group, of course, not mine. But, I think, scholarship in the field would be reinvigorated (again) by more direct interchanges among people with a broader range of views and backgrounds than seems to be the case with the current crop of scholars in the field. (A different sociological account of convergence and homogeneity is the difficulty of sustaining a group with a stable core and truly rotating participation; if one event is successful, everybody pretty much wants to return the next time, and the organizers -- despite their real commitment to some degree of rotation -- accede to a fair number of those desires. That's been the experience of the constitutional law "schmoozes" I've organized, for example, except for the one done by the American Constitution Society, where the needs of the sponsoring organization dominate the choice of participants.)

Posted 11:07 AM by Mark Tushnet [link]