LevinsonFest on Wrestling with Religious Diversity -- Collected Posts

Guest Blogger

Ashley Moran

Below are the collected posts on the LevinsonFest 2022 roundtable constitutional faith and veneration:

1. Ashley Moran, LevinsonFest on Wrestling with Religious Diversity

2. John Adenitire, Wrestling with Religion in Law

3. Douglas Laycock, On Friendship, Tolerance, and Religious Liberty

4. Carol Nackenoff, Stiff Joints Don’t Bend Anymore

5. Jaclyn Neo, Wrestling with Religious Diversification

6. Intisar Rabb, E Unum Pluribus: Comparative Textualism & Constitutional Faiths

7. Mark Scarberry, Wrestling with Religious Opposition to Leviathan

8. Nomi Stolzenberg, Can We All Get Along? A Tribute and a Question

9. Sanford Levinson, Wrestling with Diversity in the Contemporary World 

Ashley Moran is a Postdoctoral Fellow with the Comparative Constitutions Project and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.

Wrestling with Diversity in the Contemporary World

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022.

I begin by expressing my deepest gratitude first to Richard Albert and Ashley Moran for organizing this event and to the irreplaceable Trish Do for actually making it happen, technologically. And, of course, I’m grateful to each and every one of you of the participants. I am delighted that their appearance on Balkinization will bring them to the attention of a wider community that will much benefit from reading and thinking about them.

I want to engage in a special recognition of Doug Laycock. It’s not only that we’ve been friends and colleagues now for forty years. It’s also true that there is probably no single individual in the academy who has so obviously affected the way I think about the general issues surrounding law and religion. That being said, I find myself even more perplexed and ambivalent than usual at the present moment about what the relationship between law and religion should be, not least because of a lot of developments over these forty years or even more recently. I published a group of essays, Wrestling with Diversity, in which I expressed a variety of quite “Laycockian” views about how best to treat that relationship. But it turns out that the wrestling match has not ended!

I am increasingly dissatisfied with the relevance of most standard-form legal doctrine, which seems to me to evade many central questions, beginning, for that matter, with the Supreme Court’s almost insouciant inability to offer a cogent definition of “religion.” I suspect that Carol Nackenoff is correct in some of her comments about the present (and future) Court, but, save for their obvious power in the American legal order, I’m increasingly uncertain why I should take any of their opinions truly seriously, even when I might agree with the particular outcome. It is worth noting that our gathering occurred before the late-June blockbuster of the Court and, particularly with regard to Carol’s paper, its opinion in the Kennedy “praying coach” case. Many of us were perplexed why the Court took the case at all, given that its facts were quite peculiar and there was nothing close to a “conflict in the circuits” that demanded judicial intervention. It appears quite clear, though, that the majority of the Court was quite determined to intervene in order to write a broad opinion that served to upend many basic understandings of religion and state built up over the past half century. In no sense does the present Court seem interested in displaying any “passive virtues.” It has power and it seemingly wishes to use it.

It is foolhardy to deny the continued relevance of W. E. B. DuBois’s emphasis on the importance of the “color line,” even in the 21st century. But Jaclyn Neo’s fascinating paper about religious diversification across the world demonstrates that, whatever may have been our expectations fifty years ago, “the religion line” will play an ever more important role. Perhaps academics are becoming ever more secular and “cosmopolitan,” but that definitely does not seem to be the case for the nation or world at large. And Nomi Stolzenberg’s remarkable survey of my work over many years asks a truly crucial question: Is it possible for intellectually committed “secularists” and what might be called the “seriously religious” to get along at the present time, which I must say is very different from, say, the world in which the central law-and-religion case was Yoder?

Can We All Get Along? A Tribute and a Question

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Nomi Maya Stolzenberg 

On March 3, 1991, Rodney King, an African American man driving on a Los Angeles freeway, was chased and then savagely beaten by the police. A videotape of the beating ignited widespread criticism and charges were brought against the participating police officers for assault and excessive use of force. The trial, which took place one year later, culminated in acquittals of the four officers who were charged,^[1] in reaction to which thousands of people took part in five days of civil disturbances known variously as the LA Uprising or the LA riots of 1992. On the third day of the uprising, King gave an impromptu news conference, deploring the shooting of a security guard that had taken place and pleading for an end to the violence. The speech is famously remembered for one line, oft-misquoted as: “Can’t we all just get along?” In fact, the question that Rodney King posed was not “can’t we get along?,” but rather, “can we get along?” The latter conveys the same longing for peaceful coexistence that the mistaken paraphrase does, and indeed, King went on to say, wishfully, “we can get along. We all can get along. We just gotta. We gotta. I mean, we’re all stuck here for a while. Let’s, you know, let’s try to work it out.” But unlike the mistaken paraphrase, “can’t we get along?,” “can we get along?” is less a rhetorical question to which the answer must be yes than it is a genuine question, the answer to which remains very much in doubt. 

In roughly the same time period, Professor Sanford Levinson—Sandy, to his friends—published a set of essays posing essentially the same question, with one key difference. Whereas Rodney King expressed the desire to overcome the racial divisions that scar American society, these essays that Sandy wrote in the early 1990s were focused on the problem of religious division.^[2] More precisely, they examined the divide that exists between what Sandy described as “secularist, accommodationist liberals like myself”^[3] and “those who are religious.”^[4] They gave voice to his concern about whether these groups can get along, as opposed to splintering apart into mutually indifferent, or worse, warring camps. And they expressed the desire not just to confront the divide between secularism and religious belief but to explore the possibility of bridging it.

Climate change and the Supreme Court’s version of police abolitionism

Andrew Koppelman

West Virginia v. Environmental Protection Agency, which in June gutted the Biden Administration’s ability to reduce the electrical power industry’s carbon emissions, may be the Supreme Court’s most reckless and lawless decision (in an extremely competitive field). The Court comes close to anarchism, crippling Congress’s capacity to protect the country from disaster, and undermining the fundamental purpose of the Constitution.

I explain in a new column at The Hill, here.

Wrestling with Religious Opposition to Leviathan

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Mark S. Scarberry[1] 

This paper considers Professor Levinson’s (Sandy’s) treatment of Federalist No. 2 in his book on the Federalist,[2] and also his inaugural lecture at Touro Law School’s Jewish Law Institute, “Divided Loyalties: The Problem Of ‘Dual Sovereignty’ and Constitutional Faith.”[3] The Federalist extolls American religious unity as a basis for maintaining and deepening the American union. Sandy’s Touro lecture explores the conflict inherent in a religiously diverse nation, where loyalty to God and loyalty to the State—loyalty pledged pursuant to every government official’s oath (or affirmation) to support the Constitution—may conflict. (In this regard, we could consider the addition of “under God” to the Pledge of Allegiance during the Cold War struggle against totalitarian adversaries that demanded total loyalty to the State, but that would be a different paper.) 

I would like to say something about the role of minority Christian faiths—key elements of our religious diversity—in the development of First Amendment principles. I will suggest that the contribution of those faiths in wrestling with “Leviathan” may have made it possible for us all to live in peace, with a degree of unity. 

Little of this will be original. On an irreligiously religious note, consider Mark Twain’s Notebook comment on Adam in the Garden of Eden: “How lucky Adam was. He knew when he said a good thing, nobody had said it before.” Whether this paper includes any “good thing[s]” will be for others to say. 

In Federalist No. 2, John Jay, writing of course as Publius, asserted that the Constitution had to be ratified, or else the unity of the United States, such as it was, would be lost. The result? Separated, vulnerable and potentially hostile states or confederations. Unity was possible because Americans were “one united people”—setting aside the native American population and the enormity of the evil of slavery—who, among other commonalities “profess[ed] the same religion.” Sandy points out that “it would be easy to demonstrate the utter fatuity” of Publius’s assertion of these commonalities.[4] Most free Americans indeed were Christians of various sorts, though one might doubt that persecuted Baptists and Quakers considered themselves to be united by faith with Anglicans and Congregationalists. Nor, of course, would Jews. And the English Civil War, with its religious struggle—not nearing in ferocity the religious wars on the Continent but ending in the same year as publication of Hobbes’s Leviathan—would not have been far from their minds.

E Unum Pluribus: Comparative Textualism & Constitutional Faiths

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Intisar A. Rabb 

From one text comes many interpretations: e unum pluribus. This formula is of course an inversion of e pluribus unum (“from many, one”)—the motto for American democracy emblazoned on our money to provide as often a reminder to [property-owning] adherents of America’s “civil religion” of shared constitutional ideals, constitutional aspirations, constitutional faiths.[1] By making faiths plural, I am in part ceding the about-face that Sandy Levinson, former adherent, made in his Foreword to a new edition of his book Constitutional Faith. There, he concluded that, although the Constitution’s generalities are still fluid and thus negotiable, many of its structural elements have settled in ways that make governance and addressing problems of injustice hard.[2] The Supreme Court’s Term this year perhaps proves the point.[3] 

Taking up Sandy’s charge that scholars rarely discuss the general elements that make interpretation hard, I offer some comparative perspective from a seemingly unlikely place—Islam’s pluralistic legal system—to suggest that in any legal interpretation, including the most controversial in the U.S., difficult interpretive elements are never about a single constitutional faith. Nor are they even about religion, per se, even when they seem to be. They are about a plurality of constitutional faiths despite a single legal text. Those elements motivate core differences in the Court’s interpretive debates over fundamental privileges versus promises, textualism versus purposivism, status quo-preserving originalism vs. rights-promoting pragmatism.[4] I aim to explore those elements with an eye to the plurality of opinions that emerge from shared legal texts, now that stare decisis is in question as a way to settle them and now that interpretations of history and tradition matter a lot toward the same end. 

Consider Dobbs v. Jackson Women’s Health Organization, the Court’s recent decision overturning its 1973 decision Roe v. Wade and its companion 1992 decision Planned Parenthood v. Casey.[5] Differing interpretive approaches and conclusions in its majority and dissenting opinions display competing visions of “history and tradition.”[6] Those competing visions reflexively drive the interpretive approaches that dictate which history and which traditions to adopt—in Dobbs, a supermajority adopted an originalism that somehow excluded the history of slavery and its ongoing consequences, as well as the Constitution’s Reconstruction Amendments meant to address it, as Professor Michelle Goodwin has powerfully pointed out.[7] And both sides reveal competing accounts of the otherwise agreed-upon common law doctrine of stare decisis and when to forego it. In the end, all of these disagreements about history and interpretive method reveal differing value commitments in the guise of competing beliefs, not explicitly in religious faith (despite its obvious relevance to abortion),[8] but in the Constitution and the role of the Court: that is, competing constitutional faiths, plural.[9] 

As with the popular religious and political polarization about abortion, interpretive polarization was evident in the questions presented before the Court, with no room for nuance, discussion, or compromise. Each side was at pains to point out that only one position should and could reign supreme, and Justice Alito was happy to oblige in Dobbs.[10] But in reality, on the court, judges must wrestle with diversity.[11]

Wrestling with Religious Diversification

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Jaclyn L. Neo 

In the introduction to Sandy Levinson’s book Wrestling with Diversity, he states that his “principal goal” is “to examine the various ways that we attempt to come to terms with—to ‘wrestle’ with—the complex issues presented by contemporary life in a decidedly diverse, multicultural, and culturally pluralistic society.” This is a noble aim. We live in a diverse society with multiple sources of divisions (e.g., culture, language, ideology, and religion). In this post, I want to specifically orient our minds towards religious diversification as a social dynamic that requires critical attention in the public eye. This means that with increasing religious diversification, the old constitutional settlements of asserting the privatizing of religion, and ideologically bracketing religion, may no longer be sufficient.

Stiff Joints Don’t Bend Anymore

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Carol Nackenoff

‘there is room for play in the joints’ between what the Establishment

Clause permits and the Free Exercise Clause compels.^[1]

It is an honor to participate in this celebration of Sandy Levinson’s 40 years at the University of Texas at Austin. Sandy’s enthusiasm for interacting with smart undergraduates led him to accept my invitation to serve as an examiner for my Constitutional Law honors seminar at Swarthmore, and he has also been Swarthmore’s Constitution Day speaker.

In Wrestling with Diversity (2003), Sandy Levinson is especially concerned with the arrangements through which Americans might interact peaceably with other Americans with religious and cultural worldviews different from their own. Even in the founding era, a number of influential people thought those in the new United States were diverse enough to be worrisome—there were those German-speakers in Pennsylvania; there were Quakers, Catholics, and Jews; people living in southern states and those on the western frontier were seen as having such different values from those in the northern Atlantic states that it was hard to imagine how they might form a single union.^[2] Sandy argues there was no singular “People” in whose name the Constitution of 1787 was created. Since 1787, more elements of the population have been included in the U.S. citizenry, and the nation is comprised of a much more diverse array of people (religiously, culturally) than at the founding. Sandy searches for solutions that might achieve “some kind of unum among the pluribus of American society.”^[3] Toward this end, he finds exposure to other worldviews necessary—secular perspectives for those in insular religious communities and diverse religious perspectives for those who live in highly secular ones.

Today, this looks like an increasingly tall order, and the Court might even be impeding, rather than aiding, such goals. A focus on recent constitutional struggles illuminates some difficulties and stakes in wrestling with religious diversity and diverse views about the place of religion in the public realm. The Court has weighed in on quite a few blockbuster religion clause cases since Wrestling was published. Not only are Establishment and Free Exercise Clause cases favorites on the Roberts Court’s docket, but many cases involve their intersection.

The Parliamentarian’s Curious Definition of “Merely Incidental”

David Super

     Now that Sens. Schumer and Manchin have reached agreement on the Inflation Reduction Act (IRA), the Senate Parliamentarian’s role again comes to the fore.  She will have two crucial functions. 

     First, she will rule on which provisions on the agreed legislation meet the Congressional Budget Act’s requirements for inclusion in a “reconciliation” bill (the so-called “Byrd Rule”).  This is crucial because, with united Republican opposition, the IRA can only pass through the narrow exemption from filibusters that the Act provides to budget reconciliation bills. 

     And second, the Parliamentarian must decide which amendments to that legislation may be offered on the Senate floor.  Although the Act caps the amount of time that may be spent on floor debate, it does not limit the number of amendments put to a vote so long as those amendments comply with the Act’s rules for germaneness and its restrictions on the contents of reconciliation bills.  Senate Republicans have expressed no interest in improving the legislation, but they do seek to force Democrats to cast politically damaging votes to defeat their amendments.  And because the Democrats’ majority is so narrow, every single Democrat must vote against every single “poison pill” amendment for the legislation to survive. 

     Several of the Congressional Budget Act’s restrictions on reconciliation legislation enforce the congressional budget resolution that authorized the bill.  Because the budget resolution under which Democrats are moving this bill passed over a year ago, when hopes were much higher, the IRA will easily fall within all budgetary constraints.  Republican amendments could theoretically be ruled out of order for breaching budgetary ceilings, but Democrats likely would be only too happy to vote down “budget-buster” amendments that would shrink the $300 billion in deficit reduction the IRA contains. 

     As a result, the provisions of the Congressional Budget Act most likely to affect the IRA debate are those designed to keep non-budgetary matters from hijacking the reconciliation vehicle when they lack the support to move as regular legislation.  In particular, she will have to apply section 313(b)(1)(D), which declares that “a provision shall be considered extraneous if it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision”. 

     Neither the Parliamentarian nor the Senate as a whole have articulated a clear definition of what it means for a budgetary effect to be “merely incidental” to non-budgetary components.  Obviously one could not rewrite the Endangered Species Act or the Civil Rights Act of 1964 and slip it into a reconciliation bill by adding some trivial fee somewhere.  But how should less extreme cases be decided? 

     No minimum dollar threshold can do the job:  small revenue increases or spending cuts can add up to have a significant impact on the deficit.  And surely a small fiscal effect could be merely incidental to an overhaul of the nation’s telecommunications statutes yet not merely incidental to the treatment of import duties on day-minders. 

     Several years ago, the Parliamentarian rejected Republican efforts to exclude Planned Parenthood from Medicaid on reconciliation legislation.  She acknowledged that doing so might save some money but believed that restricting abortion, rather than lowering Medicaid’s costs, was the primary motive of the provision’s authors. 

     On the other hand, she allowed Republicans to gut protections for the Arctic National Wildlife Refuge on the 2017 reconciliation act.  A strong argument could be made that aiding oil and gas companies, and weakening environmental protection generally, were far more central to the proponents’ multi-year campaign to drill in the refuge than the relatively meager federal revenues anticipated.  The Parliamentarian concluded, however, that the revenues were enough to defeat a “merely incidental” point of order. 

     Throughout much of 2021, the Parliamentarian batted down several proposals to liberalize immigration laws as part of the Build Back Better reconciliation bill under consideration at that time.  Legalizing undocumented immigrants outside of reconciliation is very difficult because the Congressional Budget Office scores many such measures as having a large cost because it believes the immigrants’ family members (many of whom are U.S. citizens) would then feel more at ease accessing human services programs. 

     This would seem a classic case of the nation deciding on its fiscal priorities, the very purpose of the reconciliation vehicle.  The Parliamentarian ruled, however, that because many people passionately support helping immigrants and are largely indifferent to the fiscal impact of doing so, those fiscal effects were “merely incidental” to the non-budgetary effects on immigrants.  I disagreed with that ruling at the time – and uncertainties about its basis contributed to Democrats’ disastrous decision to delay moving the Build Back Better reconciliation bill – but it is now established precedent. 

     Republicans seem unlikely to try to provoke votes on abortion next week, but the other two precedents could be important. 

     The deal between Sens. Schumer and Manchin contains so provisions for oil and gas leasing on federal lands.  Many environmentalists could do without expanding fossil fuel consumption, but leading groups recognize that these provisions are essential to holding the whole package together, with its transformational initiatives supporting renewable energy development.  Based on her ruling on the Arctic Refuge, the Parliamentarian ought to allow this provision. 

     Republicans surely would like to force Democrats to vote on various anti-immigrant measures.  For example, they may try to force the Administration to restrict persecution victims’ ability to claim asylum in this country, as international law requires.  The fiscal effects of these provisions are likely to be quite trivial.  Moreover, much of their fiscal impact is likely to be on programs funded with discretionary appropriations, which does not count for reconciliation purposes because those programs budgets are fixed in appropriations bills. 

     These would seem to be straightforward examples of proposed changes in law with a large real-world impact and a “merely incidental” fiscal side.  These also would fit the Parliamentarian’s rationale for rejecting immigration proposals a year ago:  their motivation is hostility to immigrants – or, more precisely, seeking to mobilize voters who are hostile to immigrants – rather than any impact on the public fisc.

     More broadly, if the Parliamentarian were to allow any anti-immigrant amendments to come to a vote after blocking all pro-immigrant legislative proposals a year ago, she would create a procedural regime with a deeply unbalanced substantive effect:  immigrants’ opponents may pursue their passions through reconciliation while immigrants’ supporters may not.  For a Parliamentarian who cares more than some judges about avoiding the appearance of favoritism, deviating from her strict exclusion of immigration law changes from reconciliation could raise serious concerns. 

     Once the current legislation has been completed, the Parliamentarian could do a great service to the Senate – and to those (including the House of Representatives, the White House, the Congressional Budget Office, and the Joint Committee on Taxation) who depend on the Senate – if she would publish a clear, systematic statement of how she interprets “merely incidental”.  Whatever the merits of a case-by-case method of statutory interpretation may be in the courts, her failure to issue opinions explaining her rulings is causing considerable confusion and wasted effort while damaging confidence in her office.

     @DavidASuper1