The Faculty Lounge

The Law Professor and His Faith

Richmond law professor Henry Chambers (pictured) shares some thoughts on his faith and his approach to reading the Bible in this weekend editorial from the Richmond Times-Dispatch.

Food for the Soul

Have A Question About Communion? Ask An Atheist

According to a new survey from the Pew Forum on Religion and Public Life, the people who know the most about religion - even controlling for educational level - are atheists, agnostics, Jews and Mormons.  This from the Chicago Tribune:

A majority of Protestants, for instance, couldn't identify Martin Luther as the driving force behind the Protestant Reformation, according to the survey, released Tuesday by the Pew Forum on Religion & Public Life. Four in 10 Catholics misunderstood the meaning of their church's central ritual, incorrectly saying that the bread and wine used in Holy Communion are intended to merely symbolize the body and blood of Christ, not actually become them. Atheists and agnostics -- those who believe there is no God or who aren't sure -- were more likely to answer the survey's questions correctly. Jews and Mormons ranked just below them in the survey's measurement of religious knowledge -- so close as to be statistically tied.

Other interesting data points:

36% of people said that Brown v. Board of Education  was a trial about teaching evolution in schools (31% picked Scopes)

59% of people name Joe Biden as Vice-President

72% of people said that Susan B. Anthony led the movement for women's right to vote

59% of people knew that antibiotics only kill bacteria, and not viruses

Chai: Giving Life To The Park 51 Islamic Center

If you share my view of the appalling debate around the proposed Islamic Community Center in Lower Manhattan, check out this post over at TaxProf.   A number of law professors are organizing a campaign to donate funds to the Park 51 Islamic Center as a form of both symbolic and material opposition to the tidal wave of intolerance  that undergirds much of the opposition to this project.  The call for donations suggests that gifts start at $18 - or the numeric value of the Hebrew word "chai" (the image in this post), which means "life."  (Jewish donors often give gifts in multiples of $18 in acknowledgement of this fact.) 

The organizers state:

We decided against a joint letter because we thought it might invite endless debate over the text and more important, because we feared it would get lost in the blaring voices now shouting all around us. What we have decided to do instead is to collect pledges of financial support for the Islamic Center, wherever its promoters wish to place it. We thought action here would speak louder than words.

If you find this intolerance intolerable, now is an excellent time to speak out - in dollars, words, or any other modality that can cut through the noise.

Amnesia And The Mosque

One senses a bit of amnesia  these days.   Remember the strategic importance of respecting moderate Islam?  (George W. Bush's speechwriter does.)  Remember the intrisic value of religious freedom in America?  Eight years ago, Congress unanimously passed the Religious Land Use and Institutionlized Persons Act.  The law provides that:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--

(A) is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling governmental interest.

According to the Department of Justice, the law was adopted after:

Congress found that houses of worship, particularly those of minority religions and start-up churches, were disproportionately affected, and in fact often were actively discriminated against, by local land use decisions. Congress also found that, as a whole, religious institutions were treated worse than comparable secular institutions.

Many of us might actually be concerned about this law, since it has the potential to privilege religion above other important values.  Yet it was the law's very supporters who now oppose the mosque.  According to Marci Hamilton:

The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) -- has been a hammer that has been held by one religious developer after another, to obtain power to overcome land-use laws simply because the applicant for a zoning variance or bye is religious. RLUIPA has been a bane for homeowners and those in residential neighborhoods who have had the character of their surrounding neighborhoods dramatically altered by arrogant religious land use applicants....The ACLJ [American Center for Law and Justice] and the ADF [Anti-Defamation League], among many others, fought hard to obtain RLUIPA. Thus, it is ironic that they are now publicly demonstrating the very discriminatory anti-religious purpose that they claimed made RLUIPA necessary in the first place. I suppose they fought for the right under RLUIPA to enjoy preferences under land use codes for their own coreligionists, but may not really believe in the same expansive protection for those whose beliefs differ.

-- Dan Filler and Roger Dennis

Lying and Consensual Sex

I was listening to an NPR broadcast at lunchtime today and was struck by a talkback portion of the show dealing with a case in Israel where a man was sentenced to an 18 month jail term for rape in Israel because he had lied to a Jewish woman to convince her to have sex with him - he told her he was Jewish when, in fact, he was an Arab.  The judge in the case referred to his conduct as "rape by deception".  BBC story here.

What was particularly interesting to me was listening to a panel of non-lawyers talking about how they perceived the definition of rape.  Most of the talkback part of the show focused on things like the perceived necessity of physical violence to support a rape conviction and/or various social definitions of fraud.  During the time I was listening to the show, no one - not even the host - talked about the concept of "consent" to sex, or discussed whether the sexual act could be meaningfully "consensual" in situations where one party has lied to the other to convince them to engage in sexual activity.  Am I missing something or shouldn't this have been an important part of the discussion?

Incidentally, one person who called into the show made an analogy between lying to someone to get them to have sex and slipping drugs into the person's drink in order to induce them to have sex.  Interesting analogy, but I'm not sure that it works on close examination.  The drug situation physically removes a person's ability to make clear decisions, whereas the lying situation leaves the "victim's" natural ability to analyze the situation intact, but presents the victim with false information.  Is this significantly different or not?

Symposium: Baseball and American Culture

A few days ago the National Baseball Hall of Fame and Museum posted its program for the upcoming symposium on Baseball and American Culture.  Some of the panel topics include:

Baseball in Uniform:  America's Pastime at War

Here's the Pitch:  Business, Economics and Labor (featuring a paper that was the topic of this post, proof yet again of the "Lounge bump"!)

Red, White and Black:  Baseball in Fiction

Swing Away:  Baseball in Music, Theater, and Religion

Memorabilia and Popular Culture

Branch Rickey and Jackie Robinson:  Baseball's Great Experiment

Pedagogy:  Baseball in the Classroom

Views on the Fourth Estate

Readers interested in the symposium (to be held in Cooperstown on June 2-4) can find a complete schedule and registration information here.   Related story here.

We are the (godless) World

A few months back, Eric called our attention to the remake of "We Are the World."  Like Eric, I was pretty clueless about who most of the people were singing the new version.  Eric told us that he would get the scoop from his daughters.  Because my girls are still stuck on “The Wheels on the Bus” and “The Itsy Bitsy Spider,” I had to rely on Google and Wikipedia. 

In the course of learning about Justin Bieber, Fergie, and T-Pain, I discovered that it wasn’t only the artists who had changed.  In addition to adding a new bridge near the end of the song, the remake altered two lines of the original lyrics written by Michael Jackson and Lionel Richie.  In the original version, Willie Nelson and Al Jarreau sang:

As God has shown us by turning stone to bread,

And so we all must lend a helping hand. 

In the remake, some people who I didn’t recognize sang:

We can’t let them suffer, no we cannot turn away,

Right now they need a helping hand. 

You can imagine the outrage that ensued.  Here are some of the comments posted to news stories and blog posts about the remake:

“The new version is pretty good.  But what I don’t like is that they took out the lines referencing to God. Why would they do that? They are always trying to take God out of everything.”

“It’s sad, in a time when our ‘World’ needs God the most, you chose to leave Him out.”

“I can’t believe that God and His miracles are now ‘irrelevant’ to today’s society. That is truly very saddening.”

All of this is a bit harsh.  After all, God still manages a cameo in the new version when Mary J. Blige sings “We all are part of God’s great big family.”  But the deeper irony is that the commentators who seem to care so much about the altered lines miss the fact that the original lyrics are pure heresy.  In the New Testament account, God didn’t turn stone to bread, and that actually turns out to be pretty important to the story. 

Those objecting to the altered lines in “We Are the World” may have wrongly assumed that the mere presence of the name of “God” mattered more than the meaning it acquired through the context in which it was used.  Many religious believers make a similar mistake when “God and His miracles” show up in the ceremonial language of the state and the public speeches of its officials.  Presidential speechwriters from both parties have become particularly adept at smuggling unattributed biblical passages into official addresses.  Over forty years ago, sociologist Robert Bellah defended these kinds of moves as part of “American civil religion.” 

Bellah’s position has encountered not only secular objections but also theological ones.  In an essay called “The Earthly Peace of the Liberal Republic,” law professor H. Jefferson Powell (drawing from similar arguments advanced by theologians John Howard Yoder and Stanley Hauerwas) has argued:   

[T]he professions of carefully “nonsectarian” religious belief that permeate American government—the national motto “In God We Trust,” the prayer at the opening of the legislature, the “God bless you” at the end of the official speech—ought to provoke Christian outrage.  Rather than greeting these expressions of American “civic religion” with a kind of relief, as though they were a welcome reminder of some underlying equation of the United States and the biblical city on the hill, Christians should view them as objectionable, an attempt to manipulate public sentiment that is as cynical as it is essentially blasphemous.  We need to educate politicians who are practicing Christians about their Christian duty not to engage in this type of profanity.

If Powell is right, then George Bush and Barack Obama use the language of “God” about as carefully as Michael Jackson and Lionel Richie.  Of course, the comparison is a little unfair.  Jackson and Richie were only manipulating public sentiment to sell a song.  Our politicians are selling a lot more.

What Religion Is Your Egg?

 Israel has always posed many interesting issues relating to oocyte donation.  Now, according to the WSJ, things are heating up even more. For example, under current Israeli law, only women already undergoing fertility treatments can donate their eggs, leading to oocyte shortages and reproductive tourism.  (For prior Lounge discussions of reproductive tourism by UK couples see here and here).

For example, from the website of IVF@Israel:

Egg donation is subjected to restrictions by the Israeli Ministry of Health. A new "egg donation" law is expected in the "near" future, hopefully. Currently, availability of eggs for donation in Israel is low, since the law limits donation from IVF patients only. However, we do offer egg donation in Kiev Ukraine (a major European airline hub). The IVF in Kiev had received formal recognition by the Israeli Ministry of Health, and is run by Israeli physicians. Donors are healthy, fertile women, who undergo routine tests as recommended by the American Society for Reproductive Medicine (ASRM).

When I was teaching a course on Taboo Trades and Forbidden Markets in Israel earlier this year, the country was still reeling from the scandal at an Israeli fertility clinic in Romania.  Thirty fertility center employees, including two Israeli physicians, were arrested in connection with allegations that the Sabyc fertility clinic in Romania made payments to human egg donors, a practice which is illegal there.

In part because of these and other scandals, new legislation designed to ease the oocyte shortage in Israel has been introduced, which would expand the pool of eligible egg donors. But, according to the WSJ:

In an effort to win support from the Knesset's ultra-Orthodox factions, the bill also has a provision requiring a woman undergoing fertility treatments in Israel to do so only with eggs from a woman of the same faith.

The debate has raised precarious ethical questions. "The notion that there is Jewish blood is offensive," said Zev Chafets, a former government spokesman who also has written about reproductive medicine in Israel. When people make such a distinction, he says, "'It's not about science; it's about race. It's saying, 'We don't want outsiders, and our criterion is blood.'"

But the legislation is also expected to “increase the already high demand for Jewish eggs in the U.S., and could call into question the religious status of thousands of children born to Jewish women around the world.”  In the U.S., there have been reports of a shortage of egg donors from particular ethnic groups, especially Jewish, East Asian and East Indian, with resulting price premia for such donors.

(HT: Danny Sokol)

Related Posts:
Egg Versus Sperm Donation (Part 982)
The Value of Smart Eggs

U.K. Oocyte Raffle


How Is An Egg Donor Like A Prostitute?



Like A Virgin? We Sell That Here!

Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research

A New Meaning To "Nest Egg"

U.K. To Reconsider Payments to Egg and Sperm Donors

If God Wrote A Novel ...

... would it be Anna Karenina?

Some reflections here.

Ministerial Exception, Schministerial Exception, Part III

In my last post, which seems like weeks ago (probably because I was out sick for a day, and then had to draft my first class schedule as associate dean, but that's a story for another post), I discussed whether the ministerial exception survives the Supreme Court's decision in Employment Division v. Smith. In this post, I begin my critique of the exception with a brief point about the vulnerable position of ministers to employment discrimination. The point draws on the strongest form of the economic argument against anti-discrimination laws. That argument holds that anti-discrimination laws are not necessary, as a general matter, because discrimination will be unprofitable in an efficiently functioning employment market.  Consequently, discriminating firms will be competed out of business. The argument has been made by Gary Becker (The Economics of Discrimination), Richard Epstein (Forbidden Grounds), and others.

The economic argument begins with the proposition that job skills are distributed between the genders and among racial and ethnic groups, and so firms that refuse to hire workers on account of gender, race, or ethnicity inevitably pass over more qualified workers. The more qualified workers are then free to offer their services to competing firms that do not discriminate. By hiring the better workers, the non-discriminating firms will be at a comparative advantage to their discriminating counter-parts; the non-discriminating firms will eventually compete the discriminating firms out of the market.

Of course, there are critiques of this version of the economic case against anti-discrimination laws.  For present purposes, however, I want to accept this account. Note that the argument rests on the assumption of competition among firms for workers. The model does not work, however, if there is an employer monopoly. This is because the discriminated-against employee has no other firm to shop her talents to, and the discriminating firm has no competitors to punish the inefficient discriminatory employment behavior.

In some denominations, the minister and the church stand in the same position as an employee and a monopolist employer.  So even under the strongest form of the economic argument, the minister would merit legal protection. The market will only protect ministers who have the ability to offer their services to competing churches. In a hierarchical church, however, that may not be possible because a person who is dismissed as a minister could be foreclosed from future ministerial service in that faith. The economic argument will work only if the minister could easily offer her services as minister to churches in other faiths. For this to be so, the minister would have to see one faith as a substitute for another. Yet, for many persons of faith, that is just not so – religion is revealed as the proper path to salvation, and being forced to follow another faith would violate deeply held beliefs. If religious conversion is out of the question, the church would effectively hold a monopoly on employment as a minister of that faith.

At this point, you might ask what this discussion has to do with the issue whether the Religion Clauses of the First Amendment require a ministerial exception to federal employment discrimination laws. After all, as we learned post-Lochner, the Constitution is not a guarantee of economic efficiency. All true, but my point in this post is not a constitutional one. Rather, I want to assert at the outset that the government's interest in combating employment discrimination is particularly acute in the church-minister context because a church may be a monopolist in the minister employment market. In such cases, the government's interest in regulating is particularly strong, which would be relevant to whether the government could overcome a heightened form of constitutional scrutiny.

 

Catching My Eye

I read my first Malcolm Gladwell book over the holiday break (Outliers).  Fascinating reading!  I'm adding his other books to my reading list.

So imagine my delight in discovering that John Marshall (Atlanta) law prof Lance McMillian (pictured) recently posted an article to SSRN entitled Atticus Finch as Racial Accomodator:   Answering Malcolm Gladwell's Critique.  Here's the abstract:

Atticus Finch – the fictional hero of Harper Lee’s 'To Kill A Mockingbird' – is a legal icon. The legendary status of Finch is confirmed by his standing in the non-legal world of broader culture. In 2003, the renowned American Film Institute deemed Atticus the greatest movie hero of all-time. That a lawyer would be worthy of this honor is nothing short of remarkable and demonstrates that the stature of Atticus Finch has assumed mythic proportions in American culture. Atticus is not just a lawyer; he is justice in the flesh.

Enter best-selling author Malcolm Gladwell. Last year, Gladwell made waves in The New Yorker by arguing that, far from being a bright spot of racial enlightenment in a time of darkness, Atticus Finch instead made an immoral peace with the world of Jim Crow Alabama. While Gladwell is not the first to criticize the Atticus myth, he is the most culturally influential person to do so, which is an important development. The Atticus-As-Racial-Accommodator charge essentially posits that Atticus was all-too-comfortable with the racism (and racists) that surrounded him every day. Gladwell wonders: Where is the moral outrage? In response, I argue that Gladwell misdiagnoses Atticus because he neglects the important role that Finch’s Christian faith plays in who he is as a person. To understand Atticus, one must first understand Jesus and his teaching. Finch is a New Testament-style prophet whose worldview propels him to this truth: Love and understanding open doors; judgment and condemnation close them. Consequently, his quiet and gentlemanly interactions with the racists in his midst suggest neither passivity nor appeasement, as Gladwell contends. Instead, they are a form of character and strength – derived from Finch’s faith in Jesus – that imbue Atticus with moral authority in the eyes of the community. Moreover, while Gladwell rightly stresses the need of legal change in bringing equality to the South, the kind of moral change led by Finch was likewise necessary. Law is only half of the equation.

This year marks the 50th anniversary of To Kill A Mockingbird. Combined with the cultural significance of Gladwell’s recent revisionist foray, this milestone means that now is a particularly apt time to look at Atticus with fresh eyes and assess his character anew.

I'm looking forward to reading this!

The Flying Scotsman

Eric Liddell, known as "The Flying Scotsman," was born on this day in history in 1902.  Most of us know the story of his strong Christian faith, and his success at the 1924 Olympic Games, from the movie Chariots of Fire.  The 1981 film captured the Oscar for Best Picture, beating out Atlantic City, On Golden Pond, Raiders of the Lost Ark, and Reds.  On Golden Pond took home the top two acting awards (Katharine Hepburn and Henry Fonda), making it one of only four films to win the Oscar for Best Actor and Best Actress but not Best Picture.  (The other three films are Network, Coming Home, and As Good As It Gets, losing respectively to Rocky, The Deer Hunter, and Titanic.)

What happened to Liddell following his Olympic glory?  He returned to China (his birthplace) and served as a missionary.  He died from a brain tumor at the age of 43 while interned at a Japanese camp. 

You can learn more about Liddell here.

Law Review Articles and Personal Enlightenment

This probably serves me right for reading self help books as part of my eclectic holiday reading schedule, but I came across the following passage recently in Harold Kushner's,  When All You've Ever Wanted Isn't Enough (1986).  Sounds a bit like a James Bond movie (The World is Not Enough?)  Anyway, Kushner writes:

"The Talmud says there are three things one should do in the course of one's life:  have a child, plant a tree, and write a book.  They all represent ways of investing our creative, generative energy in things which will endure after we are gone, and will represent the best that was in us."

I've actually done all three, although I'm not 100% sure if writing law books counts.  I also don't know if planting trees in an elementary school "green" program many years ago is really what Kushner had in mind ie if someone else TELLS you to plant the tree, rather than you voluntarily deciding to plant it.  But it got me thinking about writing as a creative activity and the extent to which our law books and law review articles are like our children in the sense of being something that represents our creative and generative energy.  Or are they just something we do to earn money and climb the U.S. news ladder?  I'm sure people feel differently about this and probably not many of us right purely for professional purposes - we must get some sense of personal satisfaction out of it.  Otherwise, why would we be professors expressing our own views rather than corporate lawyers working for our clients' benefit? 

I remember some years ago talking to a friend of mine who relentlessly pursued theater and music as a young student, and then became a surgeon later in life.  When I asked him if he missed the more creative pursuits, he said that he found that surgery was a perfectly creative and expressive outlet for him.

Merry Christmas? Or Not?

It's that time of year when political correctness may prompt some of us to pause before extending Christmas wishes.  This certainly has been a hot button with retailers in recent years, resulting in corporate policies that dictate what words may be exchanged at the cash register.

The folks at this website want to diffuse some of that awkwardness by offering for sale the pictured pin.  For those who hesitate to poke holes in cashmere, the thought is also captured in the form of  a car magnet. 

Catching My Eye

A few days ago I received "legal education abstracts" from our friends at SSRN.  Catching my eye is the abstract of an essay by Professor Scott Taylor (pictured), of the University of St. Thomas School of Law (Minnesota).  The essay is entitled The Relevance of Faith Integration in Legal Education.  Here's the opening paragraph of Professor Taylor's three-paragraph abstract:

The purpose of this essay is to consider the question of whether faith integration in a legal education is worthwhile.  A lawyer's work is essentially problem solving with a moral compass in a legal context.  For many people in the United States and in Britain, a substantial part of a person's moral sense and thinking comes from religious teachings and traditions.  At the University of St. Thomas School of Law, Catholic Social Teaching and the Catholic Intellectual Tradition offer an essential backdrop that provides a springboard for discussions about justice, fairness, tax law, and the state through the lens of a faith tradition.  Other faith traditions and secular humanism are welcome perspectives.  Discussing moral foundations as part of the legal system and as important in each field of law provides law students with the opportunity to improve and enhance their own moral reasoning.

The full abstract is here.  From there you should be able to download the essay itself.

Faith is an integral part of my life, so I'm looking forward to reading Professor Taylor's essay.

Happy New Year! Westboro Baptist Love Campaign Targets Christ Killers

In honor of the High Holidays, the friendly folks from Westboro Baptist Church, in Topeka, Kansas, got up off their tucheses and came to Oklahoma University for a Rosh Hashanah protest last week.  I never really thought that Rosh Hashanah was the kind of thing one protested.  My bad.  This from the OU Daily:

Members of Westboro Baptist Church forcefully protested the Rosh Hashanah holiday in front of Hillel today, while another crowd protested and shouted across the street in opposition. Shirley Phelps-Roper, leader of the Westboro protest, said the church stopped at OU as part of a love campaign across the country to protest Jews killing Christ over 2,000 years ago. She said despite the common belief that Christ’s death brings salvation, members of the Jewish community should not have killed Christ.

“These people killed our Lord, and they know it,” Phelps-Roper said. “The hour of judgment is near and everything bad happening in the world is in part their fault for killing Christ.”

Westboro protestors held up signs reading “God hates fags,” “God hates Jews,”America is Doomed” and “God hates Israel,” among other derogatory statements.

This from our friends who attend funerals of fallen Marines, toting signs like "thank God for dead soliders."

Ain't free speech grand?

Update: A reader notes that the Westboro folks weren't afraid to visit the belly of the beast.  They protested Yom Kippur in Brooklyn this weekend. 

Paying The Ultimate Price For Your Faith

Yesterday's local newspaper reported that 33-year-old Ri Hyon Ok was publicly executed last month in North Korea.  The story also mentions that her husband, three children, and parents have been sent to a political prison.

The crime?

Ri Hyon Ok was accused of distributing the Bible.

Something to think about today as many of us sit on our cushioned pews and worship our God in air-conditioned comfort.

Story here.

President Taps Law Professor To Be Ambassador

Last week, President Obama nominated Pepperdine law professor Doug Kmiec as ambassador to Malta.  The White House press release is here.  Kmiec (pictured), a well-known constitutional law scholar, is a devout Catholic who angered some members of his faith with his support of the Obama campaign (see, e.g., stories here and here), prompting one member of the clergy to go so far as to deny Kmiec the sacrament of Holy Communion.  Malta is a predominantly Catholic nation.  Hmmmmm.

“Where’s Malta?” you ask.  It’s a three-island country in the Mediterranean, just south of Sicily.  (Perhaps you recall from Sunday School that St. Paul was shipwrecked there.  See chapters 27 and 28 of the book of Acts.)  South Texas has a summer foreign program in Malta that is quite popular with our students (no doubt the popularity reached its zenith in June 2000 when I taught International Banking Law).  The official tourism site is here.  Take it from one who has been there.  If you’re in that area of the world, try to schedule three or four days in Malta (and be sure to visit the island of Gozo).

While President Obama is poring over the Pepperdine faculty roster, perhaps we could encourage him to nominate Ken Starr to fill the next Supreme Court vacancy.  Who’s with me in this campaign?

Tillman on Stone on the Nature of the Founders' Christianity

Last fall I blogged a little bit about Geoffrey Stone's  "The World of the Framers: A Christian Nation?", which appeared in the UCLA Law Review (thanks to a pointer from our friends at co-op).  At that point I wrote that

Stone makes the important--and I would have thought obvious, except that it hasn't been much discussed of late--point that our country's founders were often liberal Protestants.  They took a very broad approach to their belief in God--many were deists.  They were children of the Enlightenment.  As I say, I don't think that's news to people who work in early American religion; but disciplinary barriers are mighty high and so I suspect this is an important insight for us in the law businesses.  And Stone's synthesis of the learning of the last generation of historical scholarship helps lawyers understand the religious context of our Constitution.

I might add one other point to this, which I rarely see discussed in legal literature: that the context of religious war in Europe framed our founders' approach to religion.  They had seen the violence that grew out of religious strife and wanted to contain it, to the extent that they could.

Now I learn that Seth Barrett Tillman has a new paper up on ssrn that responds to Stone, called Blushing Our Way Past Historical Fact And Fiction: A Response to Professor Geoffrey R. Stone's Melville B. Nimmer Memorial Lecture and Essay.  Tillman has a couple of key points--first, that Stone made some factual errors on the nature of the Constitution's references to God and second, that Edward Gibbons' Decline and Fall of the Roman Empire was not banned at Harvard at the end of the eighteenth century.  (I also fell for a different version of the story that Gibbons was banned at Harvard, in an essay on the history of the book back in 2003, I must confess--though I was using that vignette for an entirely different purpose from Stone.)  American Creation has a lengthy discussion of those points.  

But Tillman has a larger point:  that we need to know more about the nature of the founding generation's attitudes regarding the relationship between religious belief and government practice--whereas Stone focuses more on their religious beliefs.  On this bigger issue, I'm on the side of Stone: I think that the liberal Protestant views of the founding generation have implications for how we think about the nature of our country's original commitment to Christianity (or to certain types of it).   That's what I liked about Stone initially and I think that's the contribution he makes in bringing the insights of historians of the founding era to a law audience.

I'm sure that Tillman's passionate essay will invite further discussion of the role of historical context in constitutional theory.  Heck, I'm tempted to join the fray with some talk of the nature of beliefs about Christianity in the antebellum era and at the time of the framing of the Confederate Constitution.

I might add one other point to this, which I rarely see discussed in legal literature: that the context of religious war in Europe framed our founders' approach to religion.  They had seen the violence that grew out of religious strife and wanted to contain it, to the extent that they could.

Now I learn that Seth Barrett Tillman has a new paper up on ssrn that responds to Stone, called Blushing Our Way Past Historical Fact And Fiction: A Response to Professor Geoffrey R. Stone's Melville B. Nimmer Memorial Lecture and Essay.  Tillman has a couple of key points--first, that Stone made some factual errors on the nature of the Constitution's references to God and second, that Edward Gibbons' Decline and Fall of the Roman Empire was not banned at Harvard at the end of the eighteenth century.  (I also fell for a different version of the story that Gibbons was banned at Harvard, in an essay on the history of the book back in 2003, I must confess--though I was using that vignette for an entirely different purpose from Stone.)  American Creation has a lengthy discussion of those points.  

But Tillman has a larger point:  that we need to know more about the nature of the founding generation's attitudes regarding the relationship between religious belief and government practice--whereas Stone focuses more on their religious beliefs.  On this bigger issue, I'm on the side of Stone: I think that the liberal Protestant views of the founding generation have implications for how we think about the nature of our country's original commitment to Christianity (or to certain types of it).   That's what I liked about Stone initially and I think that's the contribution he makes in bringing the insights of historians of the founding era to a law audience.

I'm sure that Tillman's passionate essay will invite further discussion of the role of historical context in constitutional theory.  Heck, I'm tempted to join the fray with some talk of the nature of beliefs about Christianity in the antebellum era and at the time of the framing of the Confederate Constitution.