Michael McConnell, "Religion and Law: Is There a Connection?"
With commentary by Professor William Hubbard.
Michael W. McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, as well as Senior Fellow at the Hoover Institution. He is a leading authority on freedom of speech and religion, the relation of individual rights to government structure, originalism, and various other aspects of constitutional history and constitutional law. He is author of numerous articles and co-author of two casebooks: The Constitution of the United States (Foundation Press) and Religion and the Constitution (Aspen). He is co-editor of Christian Perspectives on Legal Thought (Yale Univ. Press). Since 1996, he has been a fellow of the American Academy of Arts and Sciences.
Presented on November 15, 2016, by the Christian Legal Society, the St. Thomas More Society, and the Federalist Society.
This audio file is a production of the University of Chicago law school. Visit us on the web at www.uchicago.edu
Host: (0:21) On behalf of the Christian legal society and our co-sponsors, the St. Thomas Moore society and the Federalist society, I'm delighted to welcome you here today for this talk on religion and law. I'm Lyle Weinberger and I'm the president of the Christian Legal Society chapter here at the University of Chicago Law School. One of the goals of the Christian legal society is to promote thoughtful Christian engagement with the intellectual issues that bring us together here in the law school. In our studies, law and religion are often in the news, but the controversial and contentious cases that make the headlines are often unfortunately presented as just another iteration of the so-called culture wars, religion and the law, however, have a deeper, richer and more complex and interesting relationship than the press coverage might lead us to believe. To help us think about the relationship of law and religion today, we're privileged to have a one of the most distinguished scholars working on this subject here with us today. Professor Michael McConnell graduated from the University of Chicago law school and then clerked for chief Judge J. Scully Wright of the US court of Appeals for the District of Columbia Circuit and for Justice William Brennan of the US Supreme Court. He served in several capacities and the executive branch, including assistant to the Solicitor General before entering academia. He taught here at the University of Chicago and at the University of Utah, becoming known as one of the leading scholars on the Constitution's religion clauses. He was appointed to the 10th circuit by President George W. Bush, and he served there until 2009 when he joined the faculty at Stanford. He's now the Richard and Francis Mallory Professor and Director of the Constitutional Law Center at Stanford. After Professor McConnell's remarks, we will have brief comments from Professor William Hubbard, who is known to most of you already as a professor here at this law school. He earned his J.D. And PHD in Economics here at the University of Chicago, clerked on the Fifth Circuit, Practiced Litigation in Chicago and joined the faculty, uh, in 2011. After Professor Hubbard's comments. He will then open the floor to questions. Please join me in welcoming professor Michael McConnell.
McConnell: (2:56) Thanks very much. I feel like I'm home again. I, you know, I, I had classes in this room, although we didn't have the fancy attractive wood paneling and modern technology in those days, but we did have (indistinguishable), um, which makes up for that, and I taught in this classroom and uh, and uh, it's, it's great to be back and to see friendly faces. When Lyle and I spoke about what I was going to speak about and came up with this topic of whether and how there is a relationship between law and religion. Um, I by the way this is not a canned talk. I've actually not spoken on this exact subject before. Um, I, it occurred to me and I was thinking over what I was going to say that which is by the way, my prime recommendation to you, if you have address an audience, is to do that in advance. I drew inspiration from what I think is one of the most thoughtful books about public theology written 1951 by Richard Niebuhr called Christ and Culture. And in Christ and culture Niebuhr sets out five different ways in which, uh, the Church interacts with the culture. Now we're talking about law, but of course laws is constitutive of culture, a very important part of culture. And so I think the parallels are quite, uh, quite close. Um, and so I'm taking inspiration from that, but in case there are some Niebuhrians here and the audience, I'd like to say in advance that I am changing his categories just slightly. Uh, there are two of his categories that I'm going to merge into one and there is one of those categories I'm going to divide into two. And as a result of this, I'm going to give them slightly different names, although all mentioned what Niebuhr calls them, uh, maybe, uh, as appropriate as we go along. So, uh, you know, don't worry, I am being a Niebuhrian heretic, but, uh, uh, I think it'll work out all right. And I think I'm being faithful, at least to his general vision of the multiplicity of ways in which Christians and members of other religious traditions interact with their cultures because there is no one path, there isn't a right answer. There are many paths. There are many traditions, uh, of this. Now I'm going to follow Niebuhr in talking in Christian language, for the most part. I am a Christian. I've been invited here by the Christian legal society and Thomas Moore Society chapters. And so I'm going, that's the vocabulary I'm going to use. Um, I can't speak for other faith traditions, but I do believe it to be true, uh, that all religions face a similar set of problems. So although I will be using a particular, uh, religious vocabulary for those of you who are from who are Jewish or Muslim or Buddhist or Hindu or Native American church or anything else, I think we'll recognize the same problems. And, uh, and so I hope we're in conversation. I'm in conversation with everybody, not just the Christians in the audience. I'm also going to be speaking as an American and with a focus upon the relationship between religion and law in the American context, and this is a not because there aren't other cultures and, but because other cultures present very different problems. Uh, we are a pluralistic nation, a liberal democracy with a substantial tradition of religious freedom and religious diversity. Obviously, religions have very different relationships to different kinds of regimes, but I'm going to be talking primarily as a, uh, as an American. And so, uh, I too am going to have five different ways of thinking about the relationship between religion and law, beginning with Niebuhr's category that he calls the Christ of culture. Um, this is an idea that the church, that the religious community, the religion and the culture are, are completely simpatico or at least mostly some simpatico.
McConnell: (8:08) This can be, you can see this is a rather sociological view of religion in most cultures. If you study, for example, some culture, like, I don't know, the culture of, of, uh, of, uh, the steps, the Asian steps in the 15th century, uh, uh, people will speak seamlessly of religion and other aspects of culture and they are pretty much the same thing, right? Culture and religion cannot be separated. Uh, and for many societies, uh, there's a, there's no difference at all. Um, the, uh, uh, and you see the church as being reflective of dominant are elements within the culture. And I think historically looking at the Christian church, uh, when we were in a monarchical regime, the church was monarchical, you know, you think of, of the Church of England with the Supreme Head being the, uh, uh, the, the, the king or queen of, uh, uh, of England and, and, uh, and a kind of hierarchy down from that. And when the, when we move into a democratic regime, the church becomes more democratic and sees Democrat, it becomes infused with democratic values and it just picks espouses democratic values. During Jim Crow, the churches of America with some notable and honorable exceptions tended to be segregated. And to support a certain kind of segregation, uh, when we become an integrationist country, the church becomes integrationist, uh, uh, with the women's, prior to the women's movement, who tended to have a, a pretty man centered leadership model for most churches and after the women's movement, this ceases to be true. And now, you know, there's a major element of feminism within mainline protestantism. And even right now, you know, we're moving so quickly from a world in which opposite sex marriage was all there was and nobody even thought of any alternatives to that, uh, to a world in which the culture fully accepts same sex marriage. And as we speak, churches of America are figuring out a lot to do with that. But there are more and more a same sex wedding ceremonies even being conducted in churches that, you know, 20 years ago would never have considered. Now for each of these things, you know, monarchical, ism and segregation and all of these things, whether we think they're good or bad, uh, the churches didn't think that they weren't necessarily following the culture. They had religious reasons for believing these things. So they tell themselves a story and it may even have been a sincere telling of a story, a sincere working out, but, uh, the, in this model of the Christ of culture, it just coincidentally (not coincidentally), turns out that the church and the culture of which it is a part are harmonious at least and most important, uh, uh, respects. And the, the effect is that the relationship between religion and law is one in which the churches are a founder or a supplemental support for obedience to the law, respect for the authorities.
Speaker 4: (12:00) They are part of the glue that keeps the society together legally and culturally. Effectively, the religions provided distinctive form of worship but no distinctive ethics. So this is the first model and I think we can see that we see that all around. This is not an uncommon model even today, even though it may sound not particularly flattering, uh, but it certainly as recognizable a second category, uh, I, I call a slightly departing from Niebhur's terminology, I call Christ apart from culture, or the church apart from the culture. And, and here is the idea that Christianity and certainly other religions as well, but again, I'm speaking from a Christian point of view is so radically at odds with the value of the world, uh, that, uh, you know, never the Twain shall meet. Let me just read you a quick quote from Niebuhr that captures this. He says, "the state and Christian faith, or simply incompatible for the state is based on love of power and the exercise with violence. Whereas the love humility, forgiveness, and nonresistance of Preston life draws had completely away from political measures and institutions against the evil of the state." There is no defense except complete non-participation, right? The most dramatic examples of that that we will be familiar with would be, for example, the Amish or, and, uh, um, a hasidic tradition. The sod, Mar Hasidim would be a Jewish example of the same, uh, thing. Um, for a long time. Fundamentalist Protestants in America were sort of like this from the birth of fundamentalism and the 1920s until I'd say roughly the 1960s and 1970s, the fundamentalist Protestants by and large were piantistic they believed in, you know, faith in Christ and a life of prayer and personal righteousness, but they did not imagine that they were going, going to really affect what's going on out of political or legal world. They left that for other people. "Just leave us alone." was kind of the slogan of, uh, of the Christ apart from culture folks, and now the fundamentalists broke into a different mode in the sixties and seventies. That's what we would be much more familiar with. And I think we're still kind of living with the after shocks of that, that change in fundamentalist practice. Um, in the wake of Obergefell. And I don't think it's just Obergefell, but a whole series, a whole set of related cultural changes that we could. Um, I, you know, you all know what I'm talking about. I'm not really quite sure what the, what the objective label is, but essentially progressive cultural, uh, uh, uh, uh, developments. Uh, a lot of Christians today are talking about this option again, who didn't talk about it before. And the word I've been hearing, maybe you've heard it also is the Benedict option, not referring to the recent pope, uh, but to St. Benedict in the idea of withdrawing into what is effectively a monastic idea, uh, just leave us alone. Let us live our lives in accordance with our values and you the world, you know, do what you will, you know, uh, uh, just don't bother us. Let us, uh, uh, live as we wish. And so this is Christ apart from a culture. The next view actually I want to talk about is Christ against culture of the church against culture. And the idea here is some similar to what need were said in that quote a moment ago that Christianity and the world are incompatible value systems, but instead of retreating into one a monastery or a cave or a, or, or the catacombs, right? Instead of doing that, uh, being active resisters, be opponents of the regime, fight it, right. I'm not from within, but actually fight it. It's, they're, they're, uh, they're the enemy. Uh, bring it down if you can, right? Then, um, there was a lot of this in the high middle ages. I really hesitate to talk about this with the (name) in the room since he's the world's greatest expert on all of this, but I think of, of when Henry, the fourth is kneeling, supposedly, I don't actually know if this happened, but the myth at least is Henry the fourth, the holy Roman empire kneels and the in the snow in canosa for three days of begging forgiveness from Pope Gregory, uh, uh, or on the one side or the art, uh, Thomas Moore, the Archbishop of Canterbury, after whom your society is named being murdered in the cathedral, or the Pope excommunicating King John and anybody who, who supported him, which was a lot of the story behind Magna Carta, you know, the church and the worldly leadership being in a struggle for power.
Speaker 4: (18:15) They're being being antagonistic to one another. I think perhaps more interesting and more engaging from our point of view. It'd be modern resistance to totalitarianism, Dietrich Bonhoffer's, um, resistance to the Hitler regime being, you know, I think, uh, a huge inspiration to many of us, um, uh, I think of solidarity in Poland as being an example of this, a successful example of resistance to the regime. Certainly the Latin American church and many, many particular countries has seen itself in this way a little bit less today than it was true 20 or 30 years ago, but still a major idea that the, the, uh, the, the church religion can serve as a focal point of resistance and opposition to evil, evil regimes. Um, in this country during the period of slavery of William Lloyd Garrison, who was one of the most problem, I assume most of, are familiar with him, One of the most prominent of the abolitionists, uh, you know, I don't know if you knew The Liberator or every issue of The Liberator has across up at the top. This was an intensely religious movement, but Garrison was not working within the system. Their slogan was that the Constitution was a covenant with Hell. And, uh, uh, and uh, and so they were, they wanted to bring down the regime. I'm going to contrast that in a moment with the next view is a much softer version of the same idea, but this is what a Niebuhr calls "Christ transforming culture." I, I'm not that much of a, of a triumphalist, I prefer to think of it as Christ or the church or religion influencing culture. So again, the idea here is that the culture, the world has different values from the religion, but instead of retreating and instead of rebelling or trying to bring down the regime, it's trying transform the regime, working within the regime, uh, in order to transform the regime into something where the values are, are more closely associated with what you think is, is right. I think, you know, Dr Martin Luther King is a great example. And what a contrast to William Lloyd Garrison, right? Because when you, uh, when you read Dr King's work, um, he is calling upon Americans to live up to our highest ideals, right? A thing. It may be even a romanticized version of what those ideals are, right? Uh, but, uh, that's what he's doing. It's a, it's a trend. It's a transformative move and not an antagonistic, a attack on, um, uh, on the regime. I think the prolife movement for the most part as a, you know, a great example of, uh, of this, uh, today, uh, and uh, uh, the antiwar though, a lot of, most of the antiwar movement, not all of it, but a great deal of religiously inspired. They also are of this ilk. Note that I'm giving examples from both the left and the right because religion and the Christian religion in particular is not of the left or of the right.
McConnell: (22:15) It can be located anywhere under this idea of Christ transforming culture. Um, it's the, all we really know is that is that it's different from the culture, right? That it offers a vision that's going to be different and maybe, you know, one side of the politic, political sphere or the other. But, uh, uh, but it is a different and, and transforming. And this, by the way, leads to all kinds of interesting legal questions because of the idea which I disagree with as a matter of Constitutional principle. This is what I'm talking about, but I disagree with this idea, but there is this notion that somehow it violates the separation between Church and State for a religious people to, uh, to, to win out in the democratic argument and have their values reflected in a society. Now, I don't if we could talk about why I don't agree with that, but it is a very common view that, uh, the, uh, when, uh, when religious people speak as religious people, uh, that they have no business in the public square. I think that that's not true. But for purposes now, what's really key is the data that this particular idea of the church transforming culture is antithetical to that. And then the last of, um, Niebuhr's categories is when he calls Christ and culture in paradox. Uh, I don't like that vocabulary because I don't really quite fully. I don't really understand what it means. It's a little too, you know, Pomo for my taste, I'm, I'm a little. I'm maybe, I'm just too linear thinker for the, for this, but when I think it means, uh, is the, uh, is the idea that most, maybe not all, but most of the values and demands of the Christian life or simply on a different plane than the demands of law or the culture. They're about something else, right? Uh, let me read you what Niebuhr has to say about that because he puts it better than I could. He says, um, he says "the Christian can be the best of citizens. He says, uh, that, uh, he will first of all be a good man in accordance with the standards of good culture, sobriety and personal conduct accompanied by honesty and economic dealings, obedience to political authority, but he will also be self sacrificing, forgiving, and humble and pursue the life of love of God for his own sake. He says, and this is again a quote from, for the demands of the two spheres are of a different nature but are not in conflict." Right? And so, um, I don't think we want to read that to the extreme. There may be some conflicts, right? But, um, I think the key, I think in the end, the actual role, this is a, I think an extremely common, a way in which Christians live in a society that is, um, we believe that, uh, the faith and grace and prayer and love for our fellow human beings is what it's all about. You know, what's going on in the world is the world can take care of itself, right? But it's not, it's not like the Christ apart from culture, which is based upon the idea that those two things are inimical. It's not that they're inimical, it's just the, they are not, they're not really closely related to each other. I'm a person who takes this view, is able to live in the world, but doesn't let the world dominate their own values. What's really important to me, what's really important to me? Things like, uh, my relationship with God through Jesus Christ. That's what's really important to someone in that, uh, and, and the world can kind of take care of itself. Now, what about the places in which there is going to be a conflict? I think the model here is one of accommodation on the one side, right, and maybe a little advocacy or transforming on the other. That is when the two things do come into conflict, you try to work it out, you don't become a, an opponent of the regime and you don't really become a reformer. You're just really tried to make it possible to, um, uh, to live peacefully without violating a, your religion. I think of cases like the recent Little Sisters case is kind of like this. The Little Sisters are off doing their thing. They're not fighting the world, they're just trying to help vulnerable people. Uh, and uh, on this one little problem that they have with the culture, they said, well, how about cutting us a little slack? Right? And the, and the Supreme Court ended up mostly saying that's right. And uh, so I think it's kind of an accommodation of idea so that people are able to live a full of a religious life in accordance with their own convictions without a, an, uh, an exaggerated sense of the, uh, of the conflict.
McConnell: (28:19) Um, so these I think, are five principle models about the way in which religion and law and interact, maybe a religion just retreats and has nothing to do with law. Maybe a religion, uh, is, uh, all with it, uh, the religion conforms to the law, supports the law and, and, uh, uh, uh, and uh, is part of the culture and, and, uh, and so forth. Maybe a religion is and is a revolutionary force against the legal regime. Maybe religion as a transformative or reforming. Uh, and I, by the way, I don't mean for that necessarily right. You know, religions can be taking what we, when any one of us might think is a bad position just as easily as what any of us might think is a good position, but nonetheless, transforming or reforming our idea or maybe most people, most of the time live their religious lives, uh, and live in the world. And those two things are on different planes and there's not that much, uh, interaction. Um, my last comment on this, and then I hope we'll have some conversation, is that I think the position that one is in the culture makes a great deal of difference for the part of it as part of these are theological choices, part of them, part of this as judgments about what the culture looks like, you know, how evil is it, is it just a, you know, is it just a little bit off or is it really fundamentally terrible to the core? So judgments about the culture, the theological judgment, but in addition to the tradition also, I think different religions have quite different traditions based upon their experience. Uh, I think by them, while I'm not sure if this is so true anymore, but for much of its modern history, uh, Jews tended to have an attitude that they knew that they were living in Christendom was in the West, right? And so it was mostly leave us alone, don't hurt us, right? Uh, rather than to, uh, uh, to, uh, engage in one of the other ways. A lot of this has to do with, you know, who, who you are, what's the tradition of the particular belief, but I think a lot of it also has to do with what position you have in society. And so I think that from the point of view of a, of a, of a citizen, um, you know, not somebody willing political power except in the ballot box and maybe in an ordinary democratic discourse, but just an ordinary powerless, a citizen. Um, I think that the idea of transformation is somewhat appealing. That is we try to make things as good as we are as we can, right? As citizens, uh, uh, religious people have just as much right as anybody else to try to make the world a better place. Right? We don't have a privileged position. And the disestablishmentarian regime, uh, we don't get to run things because we're religious or because we're a Christian, but we have just as much right to advocate for what we think is right as anybody else. Uh, I think that's a very common and perhaps correct even, from the point of view of the ordinary citizen. Um, what about people who hold official positions though? And so I was a Judge on the US Court of Appeals for seven years and this is something that I, uh, gave had, had to give a lot of thought to and I can't say that I have the right answer because it's really just a very hard problem as to how to, how to do this. But I guess for most of my judicial life I was in this, you know, Christ and culture in paradox view that for the most part, uh, I believe that, you know, I could be an active member of my church. I could have an active prayer life, I could have a active spiritual life. But as a Judge, my job was to follow the law and if somebody there were very few occasions of temptation even. Um, but I think if I had been in a situation where I was tempted to use my official power to transform the world in a direction other than what our democratic process produced this law, that I would have thought it was my job to resist that temptation rather than to use whatever levers of power, uh, I have. Now part of that may be related, not so much to my theology as it is my understanding of law because, uh, I don't believe that laws is merely politics. I don't, I'm not a legal realist. I think that law is something out there. I mean this is so crude and so we would need a much more sophisticated vision. But essentially I believe the job of the judge is to see what the law is and then to apply it rather than to use the discretion of uncertainty in the law in order to make it more what I want it to be. So, you know, in an uncertain case, it seems to me the job of the judge is to decide that case, so as to make the system of law as seamless and coherent and internally intelligible as possible rather than to make it closer to what my particular vision of the, of the right is. And I think that I associate with that with Niebuhr's idea of, of paradox because I see for the most part in that role that a religious life and uh, uh, and this legal decision making are almost always, maybe not 100 percent, but almost always, uh, uh, in different spheres. Now, does that mean that being a Christian does not make any difference? I think that that isn't right because I do think as Niebuhr, uh, says, uh, that it's incumbent upon Christians to, uh, to approach everything they do with humility, with love, with, uh, uh, empathy for other human beings. So I think, uh, and, and, and, and especially, I should say with humility that the not to believe that, uh, uh, that you as the judge are like the fountain head of all wisdom and understanding. And, um, I'm not, I would not say for a moment the Christians have anything like a monopoly on that. I wouldn't even necessarily say that it's a strong predictor and I believe other religious traditions have similar. But speaking for myself, uh, you know, I draw and drew inspiration from, uh, what I see as the values of character of a Christian and being a judge rather than taking Christianity as a set of competing values and principles, which I then would be applying instead of the law. So with that, thank you for your attention and we have another 20 minutes or so we can engage in conversation.
Host: (36:56) Professor Hubbard has brief before questions and answers.
Hubbard: (37:08) Thank you. Thank you Professor McConnell for um, for your, for your remarks. I learned a lot from them and I'm very much looking forward to hearing what you have to say during the open Q&A as well. It really provides us a framework for thinking about that. Really the manifold relations. I think that that's part of what the, the remarks, uh, offer is there's so many different ways in which religion or, or, or people who are religious, um, can relate with culture, with law, uh, with the public sphere, uh, in, in general. Um, my remarks aren't, aren't, um, uh, directly responsible there. There are a couple places where they'll overlap and then maybe even disagree. I'm not sure, but, um, but let me begin by saying, first of all, I, uh, I am completely unschooled, uh, in this, uh, on topics of, of the relationship between religion and law. So you'll have to forgive me for my lack of, uh, of learning in this area is now my comments are just based on my own personal experience and reflection of as an, um, as a lawyer, but also as, as a person who considers himself religious. Uh, so religion and law. Is there a connection? I guess when I, when I was confronted with this, with this topic, I thought I tried to think to myself, you know, what is religion? What is law? Are they similar? Are they different? And so, you know, there, there's some ways which I think it's pretty, it's pretty clear that there's a lot in common actually, and I just want to point those out fairly fairly briefly. Um, you know, historically religion and law maybe weren't even different, different things, right? Uh, this is this idea of, of um, uh, as Professor Mcconnell says that the Christ of culture, that these two things simply weren't separable. Uh, what was religion was the law and vice versa. What was the state, uh, was, uh, the religious hierarchy and vice versa. So it's certainly historically, there's a lot in common, both systems or normative, normative in the sense that they talk about what is right and wrong, what should be done. Also normative in the sense that they establish norms. They established norms that are, um, uh, systems that define permissible conduct for society. Both religion and law have what you might call scripture. I think that's worth noting. The scripture, uh, in, into relevant respects. One, the norms do not flow directly from first principles, both flow indirectly from first principles through authority. The idea that norms are to be followed because they come from authority and we can discuss whether those norms are good or bad norms by, uh, by, by, by thinking about, about the principles upon which upon which they rest, but, but ultimately compliance with norms is based on the idea that they flow from authority as such. Um, and this authority in many cases, I'm certainly involves a human leaders who, who announced a rules, but they're often interpreting text. The authority comes from text. This isn't true, certainly for all legal systems or for all religions. Uh, but for the ones that I'm more familiar with, at least I'll confess my limitation in this respect. Um, there, there is a lot of text that is being interpreted and as a consequence, because we're talking about texts written by humans, in human language, is being interpreted by humans whether we're talking about religion or law, there's always going to be an element of, of linguistic and sociological analysis attached to, to the study of religion or, or law. Uh, they're both institutions, of course, all sorts of things or institutions, but they're both, um, institutions. They're both human institutions and I would distinguish religion from, from faith or belief in a god, for example. Um, uh, I, you know, as a, as a, um, as a believer myself, you know, I believe in the objective reality of, uh, of God, I believe in God's love of all creation. Um, but I'm very aware of the fact that religion isn't an objective reality. That's, that's, that's out there. It is a human institution is something created by humans just as law is an institution created by humans. And I think there's a tendency sometimes to engage in this sort of reverse anthropomorphic fallacy when we talk about the law or, or, or religion. Um, the idea that it's, it's, it's out there. And I'll push back a little bit on the claim about legal realism and, and formalism. Although I don't think I actually disagree with Professor McConnell and disrespect, you know, god is out there, but religion is here, religion is people. It's a human institution. Um, and, and the moral, the moral basis for the law may be out there, but the law isn't out there. It's, it's, it's right here, um, uh, because it defines conduct for humans in a, in a, in a human context. Um, and, and I think that's, um, and so I think there's a parallel there. I and I, and I think it's no accident that Justice Holmes, you know, probably his most famous, um, epithet for the old formulas, few of the common law, um, the, the idea that, that the common law is simply out there to be found, uh, you know, the, the, the common law's not a brooding omnipresence in the sky but in an articulate voice of a sovereign. And I think one could say the same thing about, about religion. No matter how valid, uh, you believe your religion to be. And I consider myself a religious person. Um, it is worth distinguishing the human institution from religion, from whatever I'm objective or transcendental basis that institution may rest upon. And the same could be said for law as well as a consequence because there are so many of these parallels we might observe between law and religion. I think there's a tremendous amount to be learned from the study of religion. And, Professor McConnell's remarks certainly give us a framework for asking and pursuing a lot of, a lot of questions and a lot of parallels that arise. Um, you know, there's a tremendous amount that's been done on the study of religion, of how believers interpret scripture, how as a historical matter within any given religion, um, uh, rules of conduct become legitimate, how norms and institutions become durable. These are all questions we want to study as we think about about the law. We care about how to interpret a, our legal scriptures. We care about how, how laws gain legitimacy and how legal institutions become durable. And of course, we can also, for those of us who consider ourselves a, a religious or consider ourselves a believers, uh, we might take a somewhat more internal perspective. Um, uh, how does, um, the practice of religion affect, uh, how I approach the law. Now, you know, where to begin. There's so much to be said here, and I certainly won't say much at all. I guess I'll just, I'll just offer one. One comment has just designed to build on, on, uh, the observations that I'm, that I've just remarked upon, which is the similarity, the resemblance that one might see between a religion and law as human institutions means that religion and law have sometimes overlapping functions, maybe even competing functions. And this raises the possibility that law and religion can coexist in different ways. They may occupy distinct spheres, but mutually support and reinforce each other. They may act as substitutes for each other, uh, accomplishing something like a division of Labor in the definition, articulation and enforcement of norms of human conduct or course a each could see the other as a threat. Um, but I would caution against being too quick to perceive the ladder, the ladder a possibility. Uh, I, I, I worry that sometimes there's an error to which people of all different ideological or religious or irreligious backgrounds may succumb, uh, which, uh, I think of personally as what you might call the totalizing conception of the state and a formal law. The idea that if there is a contested norm in society that the state and the institutions of the state legal institutions or political institutions is the form to finally adjudicate that contested norm. As someone who believes in the vision of constitutional democracy, a government of limited powers, I see that temptation that, that view creates for those of us who are involved in the legal system to be, um, to be a dangerous one. A, and for people who considered themselves believers considered themselves religious. Um, I think that view is also self defeating. What it does is it concedes the domain of moral authority, uh, to the state putting a religion in the role, not have moral authority, not of teacher or leader, but rather of advocate to a higher authority which is the state as moral adjudicator. And uh, in my view, that is something that one should approach with great caution. Uh, so with that, I've already spoken too long. I'll, uh, I'll sit back down and I look forward to your discussion.
Question: (46:41) Thank you. (Indistinguishable) In each of those cases, I think the Conservative legal community was always perceived this on this side of religious liberty. Are you concerned at all that while religion is apolitical, if not, lined up with any sort of like legal norm, that the progressive left is viewed as not necessarily anti-religion but on the other side of those on the right favoring religious liberty, is this something we should worry about for the future of religion in our society as apolitical or nonpartisan institution?
McConnell: (47:41) I do worry about that a lot. Um, I think, I certainly hope, but I also think that this is a passing phenomenon. I don't mean passing as, and it's going to be gone next week, but that over the course of decades, I think that these things look rather different. I was a law clerk for Justice Brennan and I tend toward center right, he tends toward the other side. All right. So, uh, but one of the things upon which we quite agreed was a, the idea of free exercise of religion. And you know, he was the author of Sherbert v. Verner. Very committed to the idea that religious people who dissent from the state should be able, you know, we should cut them as much slack as possible, not obviously when it threatens peace and good order and uh, but, uh, not as much slack as possible. And then when I was a lawyer in the Reagan Justice Department, um, they took the opposite view. And so, you know, I, this was my liberal position, right? I might've had another one too, but this was my most conspicuous liberal legal position was advocacy for Justice Brennan's view of the free exercise of religion. Um, that wasn't that long ago. Right? But things have, as you say, changed a good bit. I don't think we should exaggerate the change, a lot has to do with the choice of cases and also this particular administration, uh, that we have, uh, uh, the, the we've been through, which has particular commitments to certain things that were contrary to at least conservative protestantism and Catholicism. Uh, I expect another administration will have a different set of issues. Uh, uh, immigration, for example, I could easily imagine clashes be a coming from the opposite direction, uh, uh, churches will become sanctuaries again, Chris, I have no idea what the new administration is going to do, but at least it's easy to imagine a, uh, that, uh, that the conflicts that are going to start coming from the opposite direction again. And then this will seem like a quaint period. Um, I also would like to note in the Supreme Court how often the court has been unanimous. Uh, there have been, you know, the Hobby Lobby case was closely divided, but, uh, uh, the first case under RFRA - RFRA has now become controversial to even those at the eye when it was enacted. It was, uh, it was the entire religious and civil liberties world against, a raid, on the other side where, uh, you know, present officials and school board officials, basically governmental officials who don't, didn't want to have to accommodate what they were doing to Pesky religious dissenters. Uh, but it certainly wasn't a left/right? It was a, uh, and the, and the first big federal RFRA, which incidentally was Chief Justice Roberts' first opinion and uh, unanimous. Hosanna‑Tabor, a free exercise clause, not RFRA, but actual constitutional free exercise exception from a non-discrimination statute, unanimous, the most recent RFRA case, the, uh, well, uh, uh, actually not the most recent one. One back, the, uh, the prison Muslim prisoner case, unanimous, and even the Little Sisters of the Poor case turned out to be unanimous. Uh, uh, so I think there's a huge reservoir of opinion that religious people really do have a right to follow their religions and that we ought to be as accommodating as possible and that that's what, that's one of the things that America is all about. I think, uh, the, the post-Obergefell politicization and partisaniziation have this issue. Um, I'm, I'm, I'm hoping it will be a short lived. Yes.
Question: (53:06) So for me, some of the most interesting problems are at the intersections of multiple religions and secular folks engaging with each other, trying to find common ground, but often this also leads to conflict. How do we as individuals and society collectively resolve these issues?
McConnell: (53:25) Well, I guess it depends on what you mean by resolve. I, I don't actually think we will resolve these issues. The best I hope for is that we're able to disagree with one another with a degree of, of harmony and peace and nonviolence and toleration. That's the best we can hope for. I don't even really aspire to a culture in which we all agree. I think that would be, um, I think it would be boring. I also think it would be bad for our religion and that I think we, I think we should be. And actually for any serious belief whether religious or not, um, we need to be challenged by people who disagree with us. We need to be it because it forces us to figure out what we really believe in. And maybe we were wrong. Maybe we shouldn't be believing it, but maybe we're right. But it's a good thing for us to have to figure out why we're right. If we're right. Uh, so, you know, I don't know if that's responsive, but, uh, uh, that's the best I can do.
Question: (54:41) Thank you very much. So I thought the framework you laid out is really interesting and particularly the idea that historically, religion across the world but in the US has been pretty accommodationist as sort of policies have changed. And I was wondering if you thought that with some of the recent developments in the courts and the changing laws, whether the shift is, the shift in sort of social norms is so fast that religion is going to have trouble accommodating or whether you think it eventually will sort of a fairly similar equilibrium to where it was before.
McConnell: (55:19) Um, my crystal ball is none too good. I hate to mention recent events, but if we're talking about the judiciary, uh, I think that the sorts of people that uh, uh, President-elect Trump has said that he will name to the supreme court are quite different from the sorts of people that Mrs Clinton would have named to the Supreme Court. And, uh, I think any of us would probably say that that is a mixed bag. But maybe from the point of view of this discussion, this might be one of the mixed bag things that they're going to be good rather than bad. Um, and that I think that, uh, uh, partly because of what this first question was saying in our current climate of opinion, I think that, uh, a center right, jurists, tend on the whole to be relatively accommodationist in their, in their views now what I hope and think but hope is that they will stick to that when the issues are coming from the opposite direction. Because what disturbs me maybe most of all about our political culture is the way in which people turn on a dime. So they're all for a limiting presidential power when it's George W Bush and all for increasing governmental power when it's Barack Obama or the opposite. I'm kind of hoping that maybe we can all get around and rally around limiting presidential power, uh, under, uh, under our president elect. Maybe that's something that we'll have that, that will be a very good outcome. Uh, federalism is very similar. Federalism people know, defend the state's rights when it's convenient and not otherwise, and, you know, freedom of speech. I think there may have been a brief shining moment like flag burning cases when, uh, when freedom of speech was defended for everybody. But I think that's unraveling certainly on American campuses that has unraveled and a, a, and a remarkable fashion. I don't know if you all are, you're probably too young to know. Um, the free speech movement was actually a campus movement. Students used to want freedom of speech. Um, and, um, uh, it just seems remarkable. They probably even got to decide what halloween costumes to wear for themselves without having grownups, a telling them what was going to be offensive. So I just told that with respect to religious freedom, that whoever we're talking about is going to play with an even hand. And, uh, if, if Muslims have the right to wear beards and prison as I think that they do in spite of neutral and generally applicable prison regulations, well, people who don't want to provide what they regard as abortifacient drugs also should have a. um, I have, I've consideration, I, the difference between the cases is just whether we agree with them or not and I don't think that that's um, uh, and a system of law of equal rights under the law. That's not the way things should, should go. Uh, yes,
Question: (59:44) (Indistinguishable) Today, there are a lot of people very concerned that Evangelical Christians have been pushing for reduction of voting rights and access to the ballot box of African Americans, especially in the South who have had trouble voting in that last election. Do you see any problem when you look back through the history of cases that were decided against African Americans, against their rights for years? Do you see any problems with religion being a source of appeal or decision?
McConnell: (1:00) Well, in a religion as a source of appeal for decision making for what we now regard as the good and for what we now regard as the bad. Uh, it's a mixed bag. You can find religions providing enormous passion for great evil and you can find religion providing enormous passion for great. Good. Uh, it's a mixed bag just like everything else, right? It's not the only mixed bag out there, uh, you know, so our newspaper editorials and party platforms and Secular Radiologies and intellectuals, populist uprisings, they're all mixed bags. I mean, if we just had an automatic way of producing the right just result for all questions, maybe you and I would be able to agree on everything. Um, but uh, uh, we live in a diverse place where people don't agree about everything and the best we've been able to work out it was for people to operate through a democratic process. So I don't know, that may just sound like my platitudinous uh, civic speech, but that's what I think.
Question: (1:02) In either Niebur's view or yours, do you think core theology offers guidance one way or another on these five options you laid out? I'm asking because, I'm not religious at all but I'm interested sort of philosophically, that it's always seemed to me in the Gospels and Paul's letters on balance are pretty different toward the state, almost apathetic toward it. And of course a lot has changed since I was just wondering whether you think there's any question you can just find any of the five models you want there or whether there really is a good theological reason to tilt one way or the other. Does it change now that we're in a democratic society?
McConnell: (1:02:40) I think I'm quoting you when you say does the theology provide an answer, and I think the answer is there is that the Theology doesn't exist. There are different theologies. One of the reasons I really liked Niebuhr's book is that he roots each of these five views and, uh, and, and very serious Christian thinkers that as people. So, uh, and, and I didn't go through that, but in each of his chapters he tells us, well, this is a view that, you know, for example, this is the view of Thomas Aquinas or this is an Augustin as a different few. Calvin has a different view. Luther is a different view. St Paul is a different view. Um, uh, so I, I think that they, I don't think that there is one answer. I think that, uh, uh, that there are serious theological arguments behind all of them. And I guess I'm somewhat glad that the church takes a, you know, it's across the map. But may I write on the particular question you raise about St Paul and an overly, uh, a deferential view towards government. Romans 13, as a, as though locus classicus of the view that you're describing, um, I, you know, governments are again by God and, and, uh, uh, uh, and so forth. Others a really excellent book by John Woody from Emory law school called the reformation of rights. And it's an intellectual history of protestantism beginning with Calvin who embrace the, uh, this sort of Romans 13 vision and was very anti-revolution, right? And going through Protestant history for the next two or 300 years. I think the last chapter is about the American revolution and showing how the, um, how the thinking within Protestantism, I'm not talking about here, you know, Protestants sort of abandoning their heritage but, but a, a very serious logical progression of ideas. A leads ultimately to a rather revolutionary idea in the American revolution where a lot. One of the main slogans, and this was proposed to be the first seal of the United States under the Articles of Confederation, period was a woodcut of the Red Sea parting, the people of Israel getting through and the water crashing in on the higher end. And around it as a, the slogan, which was one of the great slogans of the revolution is "Resistance to tyranny is obedience to God." How do you get from Romans 13? Read the book. It is a great read.
Host: (1:06:15) I'm afraid we're out of time, the conversation could go on much longer, but thank you.
Speaker 1: this audio file is a production of University of Chicago law school. Visit us on the web at www.uchicago.edu