Assoc. of American Law Schools Annual Meeting

Section on Law and Religion

January 3, 2007 (2:00 to 5:00 p.m.)

Religion, Religious Pluralism, and the Rule of Law

(Program to be published in Mississippi College Law Review - Fall 2007)

Popular debate about the relationship between law and religion appears to be dominated by two camps - religionists and secularists. Religionists maintain that law ultimately requires a religious foundation which some countries have explicitly embraced in their constitutions and substantive legal norms. In the United States, they urge that government officials recognize this religious foundation by posting the Ten Commandments, displaying crèches, keeping "under God" in the pledge of allegiance, citing scripture in judicial opinions, and allowing prayer and the teaching of intelligent design in public schools. Conversely, secularists embrace the opposite claim that law should have a non-religious foundation. Religion is usually perceived as a threat rather than a source of social solidarity. In France , for example, the doctrine of laïcité requires secular solidarity to take priority over religious freedom by prohibiting children from wearing headscarves or religious symbols in public schools. Although there are positions between these extremes, religionists and secularists dominate the current debate without demonstrating much potential for moving the debate forward.

Perhaps their differences rest on more fundamental disagreements regarding their conceptions of religion, religious pluralism, and the nature and rule of law. What are these presuppositions and where do they come from? Are the presuppositions of religionists and secularists reasonable or justifiable? Are there other possible positions based on different understandings of religion, religious pluralism, and the rule of law? How do conceptions of religion, religious pluralism, and law shape our thinking about the proper role of religion in a pluralistic democratic society?

Panelists will use various theoretical and methodological perspectives to explore these questions. Some panelists will draw on resources within the law (e.g., U.S. Supreme Court jurisprudence, international and foreign law) to address these questions. Others will draw on resources outside the law. For instance, in the United States , aspects of the Christian tradition or resources within U.S. history may explain the current state of affairs or may support a different trajectory. Alternatively, other religious traditions like Buddhism and Islam may lead to different understandings of religion and its relationship to law and human rights. Furthermore, the unique nature of religion may make it problematic to protect religious liberty directly by singling out religious activity for special treatment. Finally, it may be that the nature of law, religion, and religious pluralism needs to be rethought before we can properly consider the relationship between law and religion.

Moderator:

Mark C. Modak-Truran , J. Will Young Professor of Law, Mississippi College, School of Law

Panel Participants:

1) Larry Cata Backer , Professor of Law, Penn State , The Dickinson School of Law;

2) Rebecca R. French , Professor of Law, SUNY Buffalo , School of Law ;

3) Scott Idleman , Professor of Law, Marquette University , Law School ;

4) Robin Lovin , Cary M. Maguire University Professor of Ethics, Southern Methodist University ;

5) Elizabeth Mensch , SUNY Distinguished Teaching Professor, SUNY Buffalo , School of Law ;

6) Michael Novak , George Frederick Jewett Scholar in Religion, Philosophy, and Public Policy, American Enterprise Institute for Public Policy Research;

7) Steven Smith , Warren Distinguished Professor of Law, University of San Diego , School of Law;

8) Winnifred Fallers Sullivan , Associate Professor of Law, SUNY Buffalo , School of Law .