Posts tagged ‘Marc DeGirolami’

May 29, 2016

DeGirolami’s Essay Published in Illinois Law Review Online Symposium

Professor Marc O. DeGirolami’s essay, Substantial Burdens Imply Central Beliefs, has been marc dpublished by the University of Illinois Law Review Online in its symposium on “substantial burdens” and religious free exercise. Here is the abstract.

Any society that is open to religious accommodation will want to know about the quality of the burden its laws impose on religious belief and exercise. This short essay reflects on the nature of that inquiry. It argues that to speak of a substantial burden on religion is by implication to understand religion as constituted by a system, within which certain beliefs and exercises occupy different positions of relative importance or centrality.

 

March 14, 2016

DeGirolami’s Chapter Published in Volume on Religion and Equality

Professor Marc DeGirolami has published a chapter in The Social Equality of Religion or Marc DeGirolamiBelief, edited by Alan Carling and released by Palgrave Macmillan later this month. DeGirolami’s chapter is titled, “The Bloating of the Constitution: Equality and the U.S. Establishment Clause.” Here are the first few lines:

The US Establishment Clause is in disorder. There are currently at least six different approaches to interpreting the ‘establishment’ component of the First Amendment injunction that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” (US Constitution, Amendment 1). Tests of church-state separation, non-coercion, secularity, historical practice, non-endorsement and neutrality all have been used by the Supreme Court at one time or another across a broad panoply of cases. Sometimes two or more of these tests have been squeezed together within a single case, with implied reassurances that the result does not really depend upon the test anyway. At levels below the Supreme Court, this sort of doctrinal bricolage is often only prudent self-protective practice by judges compelled by the Court’s opacity to hedge their bets.

I have argued in other work that these doctrinal confusions are in part the result of the Court’s propensity to elevate a single value to master status in evaluating Establishment Clause controversies (DeGirolami 2013). Dependence on equality or neutrality or separationism as the preeminent constitutional touchstone in one case is felt by the Court to be inadequate or incomplete in a second or third; additional tests are thus cobbled together to accommodate what are perceived in subsequent cases to be distinctive circumstances. Single-value theories of the Establishment Clause misconstrue the conflicts at stake by leveling them – compressing them so as to be capable of processing through the filter of the selected value. Call this phenomenon constitutional flattening. One result of constitutional flattening is the multiplication of Establishment Clause theories to remedy the practical deficiencies in any one of them as they are applied case to case.

This Chapter explores a different side effect of monistic approaches to the Establishment Clause: constitutional bloating – the expansion of the scope of the Establishment Clause without the formality of an actual judicial ruling so expanding it. Courts that rely on an abstract value or interest in deciding constitutional controversies bloat the Establishment Clause by trading covertly on its political popularity, conceptual malleability and indeterminacy of meaning. Merely by recurring to or invoking the selected value – always one with vague but deep rhetorical appeal – courts swell the scope of the Establishment Clause without the need explicitly to acknowledge that expansion in their opinions. The problem is not merely that Establishment Clause bloat renders dubious any claims about the predictability of single-value approaches to constitutional adjudication. It is also that judges are thereby licensed to broaden the reach of the Clause by suggestion, allusion, or implication, without openly and clearly stating what they are doing.

The value of equality is by far the most potent and effective instrument of Establishment Clause bloat. This is so for two reasons: first, equality is the overriding legal value of our age – the defining constitutional issue of our time. The rhetorical power of equality is devastating, eliciting in its most ardent adherents something approaching militant zeal. As Steven Smith has put it, “equality is a juggernaut that overwhelms pundits, politicians, and professors, and threatens to flatten individuals or institutions that dare stand up against it” (Smith 2014). Simply to invoke the value of equality in favor of any given outcome is frequently perceived as a self-evident and irrefutable justification for it, one that it would be scandalous to question. Second, equality is multivalent, and equalities of different types may and often do conflict. Equality of opportunity is not equality of outcome; procedural equality of treatment is not the ambitious equality of ‘concern’ or ‘respect’ for every person’s substantive commitments; and though neutrality is a kind of equality, it is not the only kind. Moreover, there may be internal conflicts even within equalities of the same type. The fearsome cultural, legal and political might of equality, coupled with the multiplicity and ambiguity of egalitarian meanings, have united to create a singularly effective tool of Establishment Clause bloat.

March 9, 2016

DeGirolami on Wolterstorff’s View of Punishment in “The Mighty and the Almighty”

Professor Marc DeGirolami has posted this little paper (forthcoming in a symposium volume of the Journal of Marc DeGirolamiAnalytic Theology) on Professor Nicholas Wolterstorff’s recent book, The Mighty and the Almighty: An Essay in Political Theology. Here is the abstract:

This short comment explores Nicholas Wolterstorff’s claims about expressivism and retributivism as justifications for the state’s punishment of criminal offenders in his book, “The Mighty and the Almighty.” It asks two questions about his account of expressivism and retributivism respectively, focusing on his interpretation of the reasons for punishment given by St. Paul in his Epistle to the Romans.

January 6, 2016

DeGirolami introduces AALS Law and Religion Section Panel on “Religious Responses to Same-Sex Marriage”

Professor Marc DeGirolami, the outgoing chair of the AALS section on LawMarc DeGirolami and Religion, will introduce this year’s panel, “Religious Responses to Same-Sex Marriage,” to be held this Thursday, January 7, from 10:15 AM to noon (Nassau West, Second Floor, NY Hilton). The panel will be moderated by Michael Helfand (Pepperdine) and will include the following panelists: Erik Eckholm (New York Times), Katherine Franke (Columbia Law School), Rusty Reno (First Things), Kevin Walsh (University of Richmond Law School), and Robin Wilson (University of Illinois College of Law). The panel description is below.

Over the past 15 years, the United States has seen a rapid change in attitudes toward same-sex marriage. That change has raised significant questions and challenges for various religious communities in the United States. Religious communities have responded in different ways—from endorsement to ambivalence to rejection. This year’s panel will explore these various reactions, including theological changes within religious communities, legal challenges advanced by religious communities, and legislative initiatives pursued by religious communities, as well as a host of other social, political, and legal responses to same-sex marriage in the United States. It will discuss how religious communities might, or might not, adapt to continuing social changes in the United States and how the United States will maintain its constitutional and cultural commitment to the religious freedom of these different communities.

November 4, 2015

DeGirolami and Movsesian Present at Notre Dame Law Review Symposium on Dignitatis Humanae

Professors Marc DeGirolami and Mark Movsesian will present papers later this week as part of theMarc DeGirolami University of Notre Dame Law School’s annual Law Review symposium, which this year commemorates the 50th anniversary of Dignitatis Humanae, Vatican II’s declaration on religious liberty:

The Symposium will begin with an address from Bishop Daniel E. Flores on Thursday, November 5. Bishop Flores currently serves as the Bishop of Brownsville, Texas.

The Symposium panelists will present their works on Friday, November 6.  Panelists include

Mark Movsesian

Mark Movsesian

Professors Thomas Berg of the University of St. Thomas School of Law, Paul Horwitz of the University of Alabama School of Law, Christopher Lund of Wayne State University Law School, Mark Movsesian and Marc DeGirolami of St. John’s University School of Law, Brett Scharffs of Brigham Young University Law School, Steven Smith of the University of San Diego School of Law, Anna Su of the University of Toronto Faculty of Law, and Richard Garnett and Phillip Muñoz of Notre Dame Law School.  The panels will be moderated by Judge Richard Sullivan of the Southern District of New York.

The Symposium will feature a keynote address from John H. Garvey, President of The Catholic University of America.

Papers will appear in a forthcoming issue of the Notre Dame Law Review. Details about the symposium are here.

October 21, 2015

DeGirolami’s Article on Religion and the Roberts Court Published in Stanford Law and Policy Review Symposium

Professor Marc DeGirolami’s article, Constitutional Contraction: Religion and the Roberts Court, was published by the Marc DeGirolamiStanford Law and Policy Review in a symposium on Religion and the Law.

June 26, 2013

Movsesian and DeGirolami at Fourth Annual Law and Religion Roundtable at Stanford

This Thursday and Friday, Center of Law and Religion Director Mark Movsesian and Associate Director Marc DeGirolami will participate in the Fourth Annual Law and Religion Roundtable.  This year’s roundtable will be hosted at Stanford Law School.  Professor Movsesian will present an early-stage project on the Psychic Sophie case and the rise of the Nones on Thursday.  Professor DeGirolami will participate in the meeting as a discussant.  The ALRR forum is an invitation-only meeting “for scholars of religious freedom to share cutting-edge works and engage in discipline-shaping conversations.”

Mark Movsesian

Mark Movsesian

Marc DeGirolami

Marc DeGirolami

 

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