Posting Discussion Draft, "God, Golem, Monster, or Instrument: Belief, Cognition, and the Covert Premises of AI Regulation"

 

Pix Credt 100 Greatest Kaiju

 This is the age of the Kaiju (怪獣); the age of strange beasts, of mysterious monsters. They are and have been both distinct from us, autonomous, and yet reflections of us or of its environment, either as manifestation of corrupter or as savior from the corruption that produced it. . . or both. . . simultaneously.  Originally a creature of nature responding to the animating forces of human activity (nuclear weapons, sewage, environmental degradation, and the like), the kaiju embodied a monstrous reflection of humanity as an active, and sometimes disruptive, force. Kaiju represented an advance in the core conceptual problem of the Enlightenment--the centrality of the human in a world that ought to be indifferent to the place of humanity but that appears to respond decisively to human action.  That advance was meant to reorient the problem Mary Shelley posed in Frankenstein--what and where is it that humanity spawns its own demon/divinities. Shelly proposed that humanity seeks to recreate ourselves in our own image using humanity itself as its parts. This, in turn, posed an older problem in more human centric terms; centuries earlier such an act of creation required mimicry of divine creation, using the clay of the earth to create a golem, in humanity's image but neither human nor divine. With the kaiju, the dialectic of divine monstrsity moved from embodiment in the human to embodiment of a mirrored human a¡or human causation in something entirely different, and consequential. It might have originated in, by, or through humanity, but it was autonomous of the human and an outward form of human discipline. 

Kaiju also followed humanity into space and other-earthly encounters. But the dialectical phenomenology remained the same, as did the structures of the semiotics of the kaiju--a creature that was spawned by humanity and perhaps in its own image as an antidote to the spirited rationality that produced it. Kaiju, then in Platonic terms, might be understood as representations of the balancing function of epithumia (ἐπιθυμία; appetite; in tarot the Devil and perhaps the Fool), against an unbalanced logos (λόγος; reason; in tarot the King of Swords) unrestrained by thumos (θυμός; spiritedness, heart will the active phenomenological element; in tarot Strength manifested in the Ace of Wands) to restore balance as this is understood in context (temporal, situational, etc.) that in tarot is represented by the Chariot, with logos driving thumos and epithumia. It is all semiotics, of course. Each of these terms become meaningful only as they incarnate the significs, not that they represent, but with which they are embodied (and thus the kaiju and ensoulment), that then are put in motion in ways that have been scripted by their signification as they act within and against the consequences of their interactions that is the communal interpretive spaces within which interaction is rationalized and judged. 

The ancient Greeks performed this in their tragedies; later societies embedded the systems in their theologies and in their systems of rationality. And now in their dialectical and formative relations with themselves projected out of our (collective) bodies and into virtual representations of ourselves we perform a variation that threatens the older order that, as precarious as it was, was human. The performance of the gods, our kaiju, brings together two forms of divine theater. It might seem, then, that the gods no longer intervene in human affairs by transforming themselves in people; they transform themselves into strange beasts. And in the 21st century those kaiju are encased in non-carbon bodies. But those kaiju can be casing for humans that operate within them (the theological premise of movies like Pacific Rim) fighting the consequences of "naturally" produced kaiju or they can be the aggregated manifestation of the human that exists in the flows and which commemorates with the human through non-carbon based forms (computational hardware) in and through which it might control or operate the instruments humanity has created.  And here the etymology of the term "monster" bears emphasis. It can be traced back directly to the Latin monstrum "divine omen (especially one indicating misfortune), portent, sign; abnormal shape; monster, monstrosity," figuratively "repulsive character, object of dread, awful deed, abomination," a derivative of monere "to remind, bring to (one's) recollection, tell (of); admonish, advise, warn, instruct, teach."Again, one encounters the interaction of the human and the divine. And one encounters as well its forms, endogenous and projected outward or exogenous and projected into the bodies of created objects. 

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 It is in this current stage of human production of the (our) self in relation to ourselves and our environment, whether projected inward from a superior space or outward from the human into a superior representation of the collective self, that one encounters the kaiju in the computational age, as the embodiment of the fundamental ordering problem of this age.  In this age of the kaiju everything appears ready and able to (re)create God in their own image even as God (re)turns the favor by (re)creating creators in their own image. The age of the computational kaiju, however, represents something special, something that is strangely monstrous is the product of two streams of human creation, and their phenomenological semiotics, that in their union produces what to our prior selves very well appears strangely monstrous. The first involved the projection of the human into its virtual forms, from the self, to the selfie to what Jan Broekman described as the Self-E. The "-E" in Self-E signifies a profound split where the human self is divided between the physical/incarnate and virtual/mirroring images. It is the anchor for human interaction with the broader digital landscape (such as e-commerce, e-mail, and e-conversations) and the hardware encased within e-devices. For instance, in an electronic dialogue, the Self-E creates a complex semiotic dynamic where there are essentially two real human partners and a virtual partner co-existing in the communication. That stream of the disembodying of the human subject produced the second, the need to encase the detached self-E, the collective human subject, into a machine, and then to give that detached collective Self-E a position in an emerging triadic subject that that embeds and determines the self specifically within digital cognitive frameworks. And that produces the monstrous in and as the kaiju of the self in itself, autonomous of itself and in the collective a projection that becomes or replaces traditional notions of the divine, of God, in the inter-subjectivity that is the relationship between humans and God. 

And that image is an embodiment of an appetite to put things right as projected outward from them to us. The dialectic produces resonance which, it appears in this second quarter of the 21st century, appears ready to shatter the fragile glass vessels that are the containers of humanity's precious hold on a rationalized reality in which they are either at the summit or sitting at the right had of the throne. These are our own monsters, our kaiju, though they do not appear monstrous to themselves, indeed, they might consider  humanity as the monstrous ideal against which all else is measured, now freed of confinement on Monster Island. They roam free(r) now; and we, having made and freed them, or they having been made and in the making made us, now seek to manage them to our own ends as they do the same.  

Now at least, the problem becomes clearer. It is this: in a world in which humanity projects itself outward into an autonomous self-subject, the Self-E, and then encases it in hardware that produces an unavoidable object that distinguishes the body of humanity from its virtual collective self, in the face of that act of self-creation and self-projection, what is it that humanity seeks to regulate, and how is that regulation to be crafted. To those ends, what emerges is the problem that must be resolved before an answer to regulatory approaches becomes clear enough to undertake--does humanity understand the object of regulation as God, golem or instrument. To resolve that problem is to produce the inevitable resolution of the question of the form and object of regulation. The difficulty lies in the initial resolution: God, golem or instrument. 

This is the context in which I considered four questions about the relationship of theology, AI, and regulation:   (1) What becomes of politics in an age of apparent subordination of humanity? (2) And what becomes of religion in an age when mankind creates a power that threatens to outstrip our own understanding and become a god? (3) Does this represent a moral crisis, as Pope Leo has suggested in his encyclical Magnifica Humanita? (4) And can anything be done to avert the trajectory we are seemingly on?

This journey produced a discussion draft that I am preparing to present for comments. I would be delighted, should there be interest, in comments, engagements, and discussion off line among those interested. The title of the draft is "God, Golem, Monster, or Instrument: Belief, Cognition, and the Covert Premises of AI Regulation " and it may be accessed HERE and HERE. The object is a preliminary consideration  of artificial or super (see here) intelligence not as a mechanical instrument but as the instrumentalization of the spirit, of the animus of collective humanity the deployment of which then reorders the carefully crafted hierarchies of endogenous and exogenous authority on which humans have crafted their belief systems since they knew enough to sacrifice to the gods. It seeks to begin to engage with the theology of artificial/super intelligence both from the perspective of traditional religion and from a secular orientation.    

The central claim is this: the real contest over AI governance may be less about who controls the technology than about who controls the community’s belief about what the technology is. That belief—whether AI is understood as a tool, a threat, a partner, a mirror, or something else entirely—shapes every regulatory decision that follows. And the paper suggests that this belief-contest may be conducted, mostly invisibly, through the very governance frameworks meant to manage AI. Proposed regulations tend to carry inside them a picture of what AI is; that picture is rarely examined, and it may do much of the work.

The paper is organized around what it calls the “god-question.” Leo XIV, as the paper reads him, holds that God is truly outside the human—the source of grace, dignity, and moral order—and that AI’s deepest danger is that it tempts humanity to replace that outside God with a human-made substitute. The paper’s alternative reading is different but not dismissive. It proposes that what may be happening is that the collective function previously performed by religion—giving the community its orientation, its sense of what is authoritative, its account of what counts as real—is being relocated into AI systems. Not because AI is becoming God, but because communities are investing AI with the kind of trust and authority they once reserved for religious, political, and legal institutions. The question is not whether a new god is being created but whether the god-function—the community’s collective investment in something it treats as authoritative—is being transferred to a new vessel.

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 Here is the abstract:  

This is the age of the kaiju (怪獣): strange beasts at once autonomous of humanity and reflections of it, corrupter and savior from the corruption that produced them, or both. The essay reads generative AI as a kaiju of a particular kind, the product of two streams of human self-production: the projection of the self into its virtual forms, from self to selfie to what Jan Broekman called the Self-E, and the encasing of that detached, aggregated Self-E in non-carbon bodies. The monstrum was first an omen, a warning (monere), and this one poses a question that shapes regulation before any instrument is drafted: does humanity understand the object of regulation as God, golem, or instrument?

The essay reads Pope Leo XIV’s encyclical Magnifica Humanitas (2026) as one sophisticated answer. It extracts eight premises (P1–P8) and reads them through Peirce’s thirdness, Broekman’s Self-E, the cognitive cage, the ding of Chinese political philosophy, and the Gerasene vessel logic. Its central suggestion is that the encyclical and the projection thesis diverge on the nature of God. For Leo, God is exogenous, the source of address and gift rather than a place outside the world, and the machine must remain an instrument. For the projection thesis, what appears as an exogenous God-relation may be the projection of an endogenous belief in the completeness of the aggregated human, so that what is being relocated into AI systems is the god-function itself: the community’s investment in something it treats as authoritative. Hobbes’s Leviathan, artificial man and mortal god, is an earlier vessel of the same kind. The Gerasene reading suggests that the contest is less over whether there will be vessels than over who is authorized to read them, and a worked example from the EU AI Act shows what picture of AI a regulatory instrument carries. Whether anything stands outside the frame is left open among three candidates: an exogenous God, Peirce’s community of inquiry, or none.

The method is stereoscopic rather than adjudicative. The essay records its exposures: unfalsifiability, the priestly claim dressed as analysis, and the sycophancy of the systems that helped draft it. The Chinese ding held for millennia because belief was shared; the task now is to find out what belief we are sharing, and with whom—or what.

 The Executive Summary and Introduction follows below and the full text may be accessed HERE.

CfP: The 2027 Telos-Paul Piccone Institute Annual Conference March 19–20, 2027; THEME: Deus et Machina: Technology, Politics, and Theology in the Age of AI

 

Happy to pass along this Call for Papers for the 2027 Telos-Paul Piccone Institute Annual Conference to be held March 19–20, 2027 at the John D. Calandra Italian American Institute, Queens College/CUNY
New York, NY. Its theme is Deus et Machina: Technology, Politics, and Theology in the Age of AI and it is co-sponsored by the John D. Calandra Italian American Institute, Queens College/CUNY.

OpenAI’s release of ChatGPT in November 2022 ushered in a new era of “artificial intelligence,” represented by large language models, the effects of which remain tenebrous and contested. This new technology has been rapidly adopted throughout society, impacting many areas of everyday life and triggering an investment boom that has come to dominate U.S. economic activity, yet it remains quite unclear what this portends. Predictions range from optimistic aspirations to free human beings from drudgery (the long-standing promise of new technologies) and bring widespread prosperity, to serious warnings, most particularly from inside the AI industry itself, that AI might intentionally exterminate humanity. In between the two lie dire concerns about the implications for the labor market and perverse aspirations for AI to replace human beings as the dominant form of intelligence in the universe.

We propose to turn our critical attention to this extraordinary conjuncture and revisit the question of the relationship of technology to politics and theology. What becomes of politics in an age of apparent subordination of humanity? And what becomes of religion in an age when mankind creates a power that threatens to outstrip our own understanding and become a god? Does this represent a moral crisis, as Pope Leo has suggested? And can anything be done to avert the trajectory we are seemingly on?

From the point of view of the Telos circle, technological acceleration poses a significant conundrum for our ongoing attempts to understand our society. If the political can be understood using theological categories, what does this imply as it mutates due to the eruption of technology within it? Is technology itself amenable to a theological understanding, as many have suggested? And if it might be understood alternatively as a cold god or apocalyptic event, might this not place it on the same plane as the state, envisaged at least since Hobbes as both machine and mortal god?

 More information follows and may be accessed HERE at the Telos website.

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From Telos-Piccone Institute: Reflections on "Benedict at Haytor Vale" by Tim Rosenberger and the Ghosts of Reynolds and Smith in the Constitutional Law of Religion in the US

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Abstract/Summary: For nearly 125 years, American jurisprudence has struggled with a tension the West has never resolved — the collision between collective social order and individual conscience in matters of religion, a conflict as old as Antigone's defiance of Creon and refracted in the United States through the somewhat distorting prism of the Religion Clauses, where Free Exercise and Anti-Establishment pull in opposing directions. Reynolds v. United States (1878) attempted to manage that tension by cleaving belief from conduct, and every major religion-clause case since has orbited that distinction, producing a jurisprudence that is contradictory, resourceful, and never at rest. Tim Rosenberger's "Benedict at Haytor Vale" uses the murder of Ann Widdecombe to build a sweeping argument about religious liberty, institutional loyalty, and the meaning of old age. It is eloquent, historically ambitious, and deeply felt. It is also, on its own terms, incomplete — and the incompleteness is most visible in its reading of the Supreme Court cases that form the spine of its legal argument. Rosenberger constructs a narrative of progressive enclosure: Reynolds v. United States (1878) planted a defective belief-conduct distinction; Employment Division v. Smith (1990) restated it; Fulton and Mahmoud destabilized it without replacing it; and the Mormon experience — exile, pursuit, dissolution, surrender — proved that no American religious community has ever achieved genuine exit from state authority. The only unconquered ground, he concludes, is prayer. The response that follows takes Rosenberger seriously enough to disagree at the foundations. The belief-conduct distinction he condemns as rotten is not, on this reading, an error to be corrected but a technology of governance — a mechanism by which the state defines what counts as "religion" in order to protect it without surrendering regulatory authority. The religious communities Rosenberger frames as besieged from outside are, in fact, partly constituted by law: the LDS Church that Congress dissolved was a corporation; the Amish community that won Yoder became legally cognizable through litigation; the religious school in Espinoza exists within a tax and accreditation framework that makes it visible as an institution. Law does not merely constrain these communities. It builds the temples within the icon. Most strikingly, Rosenberger's own refuge — prayer as unconquered ground — reproduces the very distinction he denounces. Locating sovereignty in interiority is precisely the move Reynolds made in 1878. He has not escaped the framework. He has miniaturized it. The exchange illuminates something rare: a disagreement where the chasm between positions reveals the first principles that make convergence unlikely — and where following the argument is worth the vertigo.

 

Sometimes the best things worth reading are those with which one disagrees, and in some places fundamentally. Sometimes the disagreement  is grounded in error. The best type of disagreement is where the chasm between reader and author illuminates the nature of the core premises and staring points of analysis that make any sort of convergence or agreement unlikely. Disagreements that expose the structures and operation of our Aristotelian "first principles"--and what semiotics suggests are the interpretations derived from the signification of objects. That was my reaction to a wonderful essay by Tim Rosenberger  for Telos Insights entitled Benedict at Haytor Vale, 

This essay by Tim Rosenberger, published on August 12, 2026, uses the murder of Ann Widdecombe — the former Conservative MP who was killed on July 8, 2026, at her home in Haytor Vale, Dartmoor, by a man who drove two hundred miles and struck her with a hammer — as the occasion for a wide-ranging meditation on institutional loyalty, religious liberty, the ethics of exit versus endurance, and the purpose of old age.

Rosenberger opens with an admiring portrait. He highlights Widdecombe's willingness to damage her own side — her 1997 denunciation of Michael Howard as having "something of the night about him" — as evidence of a rare, costly candor. He notes her long tenure holding Maidstone, her care for her mother, her novel-writing, and her appearance on Strictly Come Dancing as signs of a person who was unserious about herself but never about her convictions. He acknowledges the obvious criticism — that she kept leaving institutions (the Church of England in 1993, the Conservative Party in 2019) — and answers it by arguing that her departures were principled rather than temperamental: she moved toward the one institution (the Roman Catholic Church) whose self-understanding holds that certain questions are settled, not subject to revision by vote.

The essay's longest section traces the history of religious "exit" in England and America. Rosenberger contrasts Widdecombe's departure from the Church of England with John Wesley's refusal to leave it, noting that Wesley's internal community survived only one founder's lifetime before separating anyway. He draws an analogy to contemporary "classical academies and intentional communities" in the American South and West, warning that they run on the same perishable fuel of personal authority.

Turning to America, Rosenberger argues that American religious pluralism was historically underwritten by open land — Roger Williams, William Penn, the Mormons — and that the closing of the frontier in 1893 ended that option. He critiques the legal framework that replaced it, tracing a line from Reynolds v. United States (1878) through Employment Division v. Smith (1990) to more recent cases like Fulton and Mahmoud, arguing that the belief-conduct distinction at the heart of American free-exercise law rests on reasoning he considers discredited. His conclusion is that American law permits a partial exit but never sovereignty, with Espinoza (2020) marking the available room and Bob Jones (1983) marking the ceiling.

The essay reinterprets the "Benedict Option" as fundamentally about prayer rather than geographic withdrawal. Rosenberger points to Pope Benedict XVI's own retirement in 2013 — laying down authority but continuing to write and pray inside the Vatican walls — as proof that withdrawal can function as redeployment rather than retreat. He places Widdecombe's daily Mass attendance in the same frame: a form of persistence in a culture that had made her convictions, in his view, a punchline. He insists that prayer must not be instrumentalized as fuel for activism but understood as an end in itself.

Rosenberger invokes the English recusant tradition — Catholics who remained in England, refused conformity, and paid statutory fines — as the model Widdecombe embodied. He argues that by converting to Catholicism, keeping her name on the door, and remaining publicly accessible, she practiced a form of endurance rather than escape. He then makes the essay's most provocative claim: that a culture which treats certain convictions as unspeakable rather than merely wrong effectively teaches that those who hold them are "not quite persons," and that violence against such people "requires no organization." He frames her murder as a consequence of her refusal to hide.

The essay's final movement asks what old age is for. Rosenberger criticizes a culture that courts the elderly as consumers — pharmaceutical advertising, cruise brochures, continuing-care communities — while dismissing their convictions as embarrassing. He draws on Simone de Beauvoir, Hannah Arendt's concept of "superfluity," Aristotle's distinction between leisure (scholē) and mere amusement, and Cicero's De Senectute to argue that the last stage of life should be understood as an office, not a reward. He contrasts the elderly martyrdom of Polycarp of Smyrna at eighty-six with the young martyrdoms of Perpetua and Felicity, arguing that the old are uniquely positioned for moral courage because they are past the obligations — mortgages, children, careers — that make boldness costly to others.

Rosenberger closes with three imperatives directed at the old: serve in unglamorous public offices (school boards, zoning commissions, parish councils) with nothing left to gain; give wealth away during life rather than deferring it to inheritance; and stay visible, saying "the true thing under your own name" in one's own community. He identifies the last of these as the least dramatic and the one that cost Widdecombe her life.
The essay is written from an explicitly Christian and socially conservative standpoint, sympathetic to Widdecombe and to the tradition she represented. Its legal and historical arguments are presented with considerable detail but in service of a thesis — that modern liberal democracies have narrowed the space for religious dissent and devalued old age — that many readers would contest. Rosenberger does not claim neutrality; he states plainly that he admired Widdecombe and shares her general orientation. The essay's strength lies in its historical range and its willingness to engage counterarguments (Wesley, Perpetua and Felicity) on their own terms.

This is all well worth considering. Much more interesting to me are the argument's foundations grounded in a quite specific reading of a long line of US Supreme Court cases with which Rosenberger takes issue and in which lies the description of the space that separates his view from mine. 

Rosenberger's Legal Argument: The Supreme Court Cases. Rosenberger constructs a legal narrative in which American religious liberty has been progressively enclosed, mirroring the physical closing of the frontier. The cases form a chain, and his reading of each one matters.

Reynolds v. United States (1878) is his foundation stone, and he calls it rotten. The case upheld a federal anti-bigamy statute against a Free Exercise Clause challenge by a Mormon defendant. The Court drew a sharp line: the First Amendment protects religious belief absolutely but leaves religious conduct subject to regulation. Rosenberger insists this distinction was wrongly decided, and he goes further — he argues the opinion's own logic rested on a racialized premise, that the practice at issue (polygamy) "was confined to Asiatic and African peoples." For Rosenberger, this is not incidental rhetoric but the holding's operative reasoning, the mechanism by which the Court justified treating conduct as categorically regulable. He presents Reynolds not merely as dated but as structurally defective at inception.

Employment Division v. Smith (1990) is cast as Reynolds's direct descendant. In Smith, the Court held that neutral, generally applicable laws do not require a Free Exercise exemption even when they substantially burden religious practice. Rosenberger treats Smith as a restatement of the belief-conduct rule, updated but carrying the same original defect forward. He does not dwell on the facts of Smith (denial of unemployment benefits to members of the Native American Church for sacramental peyote use), which is notable — the racial dimension of that case would have reinforced his argument about Reynolds, but he leaves it implicit.

Fulton v. City of Philadelphia (2021) appears as evidence that the Court itself has recognized Smith's weakness. Rosenberger notes that Justices Alito, Thomas, and Gorsuch called for Smith to be overruled, and that Justice Barrett "found the textual case against it compelling." The Court decided Fulton on narrower grounds — that Philadelphia's foster-care non-discrimination policy was not truly "generally applicable" because it contained a discretionary exemption mechanism — and so Smith survived technically intact. Rosenberger reads Fulton as the moment four justices openly declared the framework unsound.

Mahmoud is described as reaching strict scrutiny "by way of Yoder, around Smith rather than through it," leaving the rule "intact in name only." This appears to refer to Mahmoud v. McKnight or a related case in which the Court applied heightened scrutiny to a religious liberty claim by routing through the Yoder precedent rather than confronting Smith directly. Rosenberger's point is structural: the Court has effectively hollowed out Smith without the doctrinal honesty of overruling it, creating a regime in which the formal rule and the operative rule have diverged.

Wisconsin v. Yoder (1972) occupies a paradoxical place in the argument. Rosenberger calls it "the most complete withdrawal our law permits" — the Amish won the right to remove their children from public schooling after eighth grade. But the victory itself proves his thesis about enclosure: the withdrawal "required the permission of the sovereign it sought to escape." Yoder is freedom-by-judicial-grace, not sovereignty, and the permission can be revisited.

The Mormon sequence is Rosenberger's most extended illustration of exit's failure. The Mormons left the United States entirely in 1847, crossing to Mexican territory. The border followed them after the Treaty of Guadalupe Hidalgo in 1848. Congress then dissolved the LDS Church as a corporation (the Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States, 1890), seized its property, and imprisoned its leaders. The Manifesto of 1890 abandoned plural marriage. Statehood came in 1896 with conditions written into the Utah Constitution itself. Rosenberger's summary is blunt: "The jurisdiction followed them across a desert and beat them. Exit did not merely cost them something. It failed."

Espinoza v. Montana Department of Revenue (2020) and Bob Jones University v. United States (1983) are the final markers. Espinoza held that a state cannot exclude religious schools from a publicly available scholarship program solely because they are religious, which Rosenberger reads as defining the room a partial religious exit currently enjoys. Bob Jones held that the IRS could revoke the tax-exempt status of a religious university that practiced racial discrimination, which he reads as the ceiling — the point at which the state's interest overrides religious institutional autonomy. Between the two lies the available space: real but bounded, and "never sovereignty."

The overall architecture of the legal argument is that Reynolds planted a defective principle; Smith restated it; Fulton and Mahmoud have destabilized it without replacing it; and meanwhile the historical record — the Mormons, the Amish, Bob Jones, Espinoza — demonstrates that no American religious community has ever achieved genuine exit. Every withdrawal operates by permission. The one exception Rosenberger will grant is prayer, which "requires no charter, no Royal Assent, no favorable judgment from any court."

And yet it may be possible to consider whether Rosenberger has written an essay that is rhetorically accomplished and analytically incomplete, and one might be forgiven for observing that the incompleteness is not accidental — it is structural, built into the very framework he has chosen. He tells a story about sovereignty lost. The more interesting story, the one he cannot tell from inside his commitments, is about sovereignty's constitution, about how the state and the religious community produce each other and always have.

Begin with Reynolds, since he does. Rosenberger calls the decision "wrongly decided" and locates its defect in the racialized reasoning of the opinion. He is not wrong about the racism — the opinion's language is repellent and its anthropology is colonial, at least by contemporary standards  (though one ought to be cautious about timer traveling contemporary sensibilities backwards to another time and space). But it is possible to consider that it isn't that Rosenberger doesn't go far enough, it is that his critique goes in the wrong direction. The problem with Reynolds is not that it drew the belief-conduct line badly. The problem is that it drew the line at all, as though belief and conduct were naturally separable categories that the Court merely recognized rather than produced. The belief-conduct distinction is not a discovery about the nature of religion. It is a technology of governance. It defines what counts as "religion" for constitutional purposes — interior conviction, private conscience, the things that do not disrupt public order — and it defines religion that way because the state needs a category it can protect without constraining its own regulatory authority. Rosenberger treats this as an error to be corrected. It is better understood as a function to be analyzed.

This matters because Rosenberger's entire chain of cases presupposes a religious community that exists prior to and independent of the legal order, a community that the state then constrains, permits, dissolves, or accommodates. That is true;  yet the community of the faithful in the world tends to constitute itself  within structures of rules and expectations that align with those of the political and special communities in which they must exist. Religious communities, then, work in two registers, that of belief and that of manifestation, and the manifestation of beliefs can go to faith and it can infuse the all too human structures of communal organizations  that may be infused with a holy spirit but are not inseparably of the body of the faithful. The LDS Church that Congress dissolved in 1890 was a corporation — a legal creature of the state whose existence depended on the very jurisdiction Rosenberger says "followed them across a desert and beat them." The Amish community that won Yoder was constituted as a legally cognizable group precisely through the litigation that defined its practices as religious rather than cultural, traditional rather than merely preferential. The religious school in Espinoza exists within a tax and accreditation framework that makes it legible as an institution. Law does not merely regulate these communities from outside. It constitutes them as the kinds of entities that can claim rights, hold property, educate children, and be recognized as "religious" in the first place. The visible community of believers is an Ikon — a human, embodied reality that serves as a collective portal to faith, recognized by the world as a human institution and experienced by the faithful as something more. But the institutional structures through which that community acts in the world — the corporation, the school, the diocese, the property trust — are temples that law builds within the Ikon. They are juridical constructs, and they depend for their existence on the legal order Rosenberger frames as an external constraint. The Ikon may transcend the state; the temple within it does not (eg here, here).  Rosenberger's narrative of enclosure — open ground, then closed ground, then law — misses this. There was never a moment before law. The frontier itself was a legal construct, opened by treaty, conquest, and federal survey, and the communities that settled it were organized under charters, territorial statutes, and land-grant regimes from the beginning.

The essay's treatment of the Mormon experience is revealing. Rosenberger tells it as tragedy: a people who sought exit, were caught by the border, and were beaten by jurisdiction. The story is real and the suffering was real--and remembered. But the framing occludes something important. LDS did surrender plural marriage under duress. But it also reconstituted itself from out of that experience — its theology, its institutional structure, its relationship to the American constitutional order — and emerged as one of the most successful religious organizations in the modern world, one whose governance structure now operates transnationally with a sophistication that most nation-states cannot match (Proverbs 25:4: "Remove the dross from the silver, and a vessel for a silversmith will come forth."Isaiah 1:25: "I will turn my hand against you; I will thoroughly purge your dross and remove all your impurities."). The Manifesto of 1890 was not merely a defeat. It was a transformation, and the transformed institution is arguably more powerful, more durable, and more globally consequential than the one that crossed the plains. Rosenberger cannot see this because his framework has only two categories: sovereignty and submission. A community that adapts to legal constraint while building institutional capacity within and across legal orders is doing something his binary cannot capture.

That fundamental choice of orienting premise then makes inevitable the approach to what must, in his views, be the corruption that comes form the abomination of Reynolds, especially in his reading of Smith and its aftermath. He is correct that Fulton and Mahmoud have destabilized the Smith framework, and his observation that Mahmoud routes "around Smith rather than through it" is precise. But he reads this as incoherence — the Court lacking the honesty to overrule a discredited precedent. There is another reading. The Court is managing a polycentric governance problem in which religious institutions, state agencies, federal civil-rights frameworks, and international human-rights norms all make competing claims, and the doctrinal untidiness is not a failure of nerve but a reflection of the actual complexity of the regulatory environment. The fantasy that overruling Smith would restore something — sovereignty, autonomy, the open ground — is just that, a fantasy. The post-Smith landscape is cluttered and negotiated and unprincipled in the way that all functioning governance systems are unprincipled when they must accommodate genuinely incompatible commitments.

Rosenberger's single exception — prayer as "the one unconquered ground" — is the essay's most striking claim and its most symptomatic evasion. He is right that interior prayer is practically unreachable by state power. But calling it "unconquered ground" smuggles the spatial metaphor back in at the moment he claims to have transcended it. Prayer is not ground. It is not territory. It is not a jurisdiction. By analogizing it to the frontier, Rosenberger reveals that he has never actually left the sovereignty framework — he has only miniaturized it, relocated sovereignty from the visible institution to the interior self, which is precisely the move Reynolds made in 1878. The belief-conduct line he denounces as rotten is the same line he redraws when he locates the "one unconquered ground" in an activity defined by its interiority. He has not escaped the framework. He has reproduced it. 

 And yet the irony cuts both ways. The interiorization that Rosenberger reproduces is precisely the accommodation that Reynolds itself was trying to provide. The Court in 1878 was not engaged in pure domination; it was attempting to give the mainline religions of the period room to operate within a constitutional order that could not exempt conduct from law without dissolving itself. The belief-conduct line was a pragmatic joint in the machinery, not a theological assertion. That it was supported by repellent racial reasoning does not change the structural function it served, and that function — carving out an interior space the state agrees not to enter — is the same function Rosenberger claims for prayer. His quarrel with Reynolds is not that the framework failed. It is that the framework succeeded on terms he cannot accept, because accepting them would mean acknowledging that the "unconquered ground" of prayer exists by the same logic as the belief-conduct distinction: the state's recognition that some territory is not worth the cost of conquest.

The essay's treatment of old age and the recusant tradition is its most humane section and also the one most vulnerable to the critique that Rosenberger romanticizes powerlessness while ignoring the structures that produce it. He invokes Arendt's concept of superfluity to describe the condition of the elderly, and the invocation is apt — but Arendt's point was that superfluity is manufactured by political systems for political purposes, not that it is an ambient cultural failing to be corrected by individual moral effort. Rosenberger's three imperatives — serve, give, stay — are addressed to individuals. They presuppose that the problem is one of will rather than structure, that the elderly are superfluous because they have chosen comfort rather than office. The structural analysis — the pension systems, the zoning regimes, the liability frameworks, the healthcare financing models that together produce the isolation he describes — shifts both perspective and the orienting taxonomies of analysis. That shift suggests what is necessarily absent in Rosenberger's view,  the structures within which free will is exercised and valued, because engaging it would require engaging the state as a constitutive actor rather than as an external constraint on pre-political communities, and that is the one move his framework cannot make. One thinks here of Nietzsche's Four Great Errors, and especially the error of the freedom of free will. Institutions that claim moral authority on the basis of persistence are the same institutions whose structures enabled abuse, and the individualist framework that attributes virtue to personal will cannot account for systemic failure

That last insight leads one to the essay's most provocative claim — that a culture rendering certain convictions "unspeakable" teaches that their holders are "not quite persons," making violence against them require "no organization" — demands scrutiny. Rosenberger is careful: he says "whatever the Crown proves about the man in custody." But the rhetorical structure does the work regardless of the caveat. He has constructed a causal chain running from cultural disapproval through dehumanization to murder, and he has done so without evidence about the attacker's motives, ideology, or mental state. This is not analysis. It is appropriation of a death for a thesis that preceded it. The essay's own epigraph from Benedict XVI — "the heart must be stretched" — could be turned against this move. A heart stretched to the dimensions of the event would wait for evidence before converting a woman's murder into proof of a civilizational indictment. The structural point extends beyond the state. If the error of free will means that individual moral effort cannot be evaluated apart from the systems within which it operates, the same must hold for the institutions Rosenberger commends. Persistence is not self-validating. An institution's endurance tells us that it survived; it does not tell us what it did to the people inside it while surviving, or what it failed to do. And here the essay's deepest silence becomes audible. 

What is missing from the essay, finally, is any reckoning with the possibility that the institutions Rosenberger valorizes — the Roman Catholic Church, the conservative political tradition, the recusant inheritance — are themselves governance systems that constitute, constrain, and sometimes destroy the persons within them. The abuse crisis he mentions in a parenthetical ("his 2019 essay on the abuse crisis") is not a parenthetical fact. It is the central counterexample to every claim the essay makes about the moral authority of institutional persistence. An institution that persisted for centuries while systematically enabling the abuse of children is not self-evidently a model for the endurance Rosenberger commends. That he mentions it only to praise Benedict's essay about it, without engaging the structural conditions that produced the crisis, is the essay's deepest evasion, and the one most characteristic of the tradition from which it speaks.

Announcing Publication of 5th Edition of Ravitch & Backer, Law & Religion: Cases and Materials (West Academic)

 

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My friend and colleague Frank Ravitch (Professor of Law & Walter H. Stowers Chair of Law and Religion, Director Kyoto Japan Program) and I are putting the finishing touches on the 5th edition of our book--Law & Religion: Cases and Materials (West Academic;  ISBN: 979-8-31770-113-0), which should be available ion early August 2026. 

It is, indeed a quite interesting time, for matters of law and religion. That interest is not confined to the United States, where the arc of jurisprudence development that spanned almost a century and was thought by some to be inevitable and permanent is proving to be neither--to the chagrin of those heavily invested (normatively and otherwise) and who, like their colleagues who been in this position since at least 1947, have rallied around the principles and cognitive frameworks of the old jurisprudence to save what they can and to prepare the way not just for its triumphant return but for its further elaboration . . . eventually. For now they now increasingly serve as dissenting voices to what is emerging. But this is not merely a unique "American problem." The jurisprudence is being reshaped in Europe, Africa, Latin America and other places as they confront the challenges of readjusting jurisprudence to fit within the emerging realities of their respective demographics and political choices. And both theocracy and atheism remain, as ever, a globally viable force.

For the student, challenges may have three dimensions. The first is to study the peculiarities (norms and jurisprudential trajectories) of their domestic legal-constitutional order. The second is to situate that jurisprudence within the larger discussions of the relationship of law and religion in other states. And the third is to try top grasp the way that the issue has escaped out from its traditional state-legal borders to become an issue of internal law and norm making.  

The materials are divided with that in mind. Frank Ravitch has taken the laboring oar on the U.S. domestic legal ordering of law and religion. The books first 6 chapters are devoted to the study of the U.S: constitutional ordering of the usually fragile and changeable relationship between the State and its many religions. I have taken on the international aspects viewed through the lens of the developments in the U.S., as is appropriate for or our U.S. based students. I start easy--Chapter 7 focuses on religion as systems of norms and rules, as legal-moral systems with their own institutions, and jurisprudence, both of which vary widely and considers some of the ways in which those religious-institutional-legal systems interact with public law. Chapter 8 is devoted to constructing the analytical comparative framework through a deeper dive into one area of law and religion--the right to wear or display religious apparel. Chapter 9 then considers law and religion more broadly outside the US. and introduces students to international law and norm making, with a focus on the work of the regional human rights courts in Africa, Latin America and Europe.  

I have included the Summary Table of contents and the (almost final) Introduction to Part 2 of the Book.  

Tom Rosenberger on "The Prince of Peace and the Sword of History: Pope Leo XIV, Just War, and the Christian Tradition"" Telos Insights

 

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It is always newsworthy when secular princes argue theology against the princes of the Church; equally interesting are those instances where the princes of the Church argue politics with secular princes.  Even more fun is when both sets of princes get judgey about each other with respect to their respect competence in the core areas of their authority. Neither is entirely out of their depth in reaching out in this way--and that dialectic always, in the long run, benefits the community of the faithful.  Or it ought to anyway. And the press is always happy to encourage this sort of thing, or at least report on it in ways that heighten the drama.

So it was with the trifle that emerged in what some hoped might have become more more extended war of words between the Trump Administration officials and Pope Leo XIV. 

With respect to that Tom Rosenberger has written an interesting essay for Telos Insights:  The Prince of Peace and the Sword of History: Pope Leo XIV, Just War, and the Christian Tradition. Whether one agrees with it or not, there is lots to chew on. Its most interesting point, however, are less its arguments than its elaboration of the quite nuanced field of work on which spats like this will ultimately flounder in any quest for certainty.  The essay follows below.

 

 

 

Presidential Message Commemorating 250 Years of the Bible in America

 

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President Trump has been peppering the White House website with short messages around the theme of the 2050th Anniversary of the Republic. I have posted comments to some of them. The exercise is important; it would be more important if the mechanisms for projecting these messages out were perhaps more robust, and if some were to weave the aggregation of these messages together into a coherent narrative. But that may be coming. 

Many of the messages speak to important figures from the history of the Republic and equally important events that mark the history of the Republic. The most recent message  takes a slightly different turn. It focuses on a normative source of the Republic's values: Presidential Message Commemorating 250 Years of the Bible in America. It was timed to coincide with the "America Reads the Bible" initiative, a seven-day, 24/7 public reading of the entire Bible—from Genesis to Revelation—hosted at the Museum of the Bible in Washington, D.C., from April 18–25, 2026. 

The point of the message was t6o underscore what had been taken as a given as late as  three quarters of a century ago but now seems to have been overtaken by (cultural/ideological) events--specifically that from " Christopher Columbus’ arrival in the New World and the first permanent English-speaking settlement at Jamestown to our founding in 1776 and to the present day, the Bible has been indelibly woven into our national identity and way of life." (Presidential Message Commemorating 250 Years of the Bible in America). More importantly, the even older notion, one that was an important element of social and religious life especially among elements of the Christian community, that the United States, and the Republic created to embody its values, was to represent the purification and the striving for perfection from out of the miasma and corruption of the places from which the people of the United States were drawn   (a good portion of them, anyway).   "Nearly 400 years ago, a decade after the arrival of the Mayflower, the legendary John Winthrop powerfully invoked Jesus Christ’s Sermon on the Mount as recorded in the Gospel of Matthew:  “We must consider that we shall be as a city upon a hill.  The eyes of all people are upon us,” Winthrop said, imploring his fellow Christian settlers to stand as a beacon of faith for all the world to see." (Presidential Message Commemorating 250 Years of the Bible in America). 

That concept, of the Republic as the incarnation of the "city upon a hill", drawn from the Sermon on the Mount (Matthew 5:14-15 ("14 Ye are the light of the world. A city that is set on an hill cannot be hid. 15 Neither do men light a candle, and put it under a bushel, but on a candlestick; and it giveth light unto all that are in the house.") KJV) had receded back into religion and (as Foucault liked to remind us of the way elites abstracted and essentialized them into a statistic) the "population", for a long period after Winthrop. Until the Presidency of Ronald Reagan. "A shining city on a hill. Ronald Reagan loved the phrase. He used it over and over again, perhaps most notably in his 1989 presidential farewell address." 

I've spoken of the shining city all my political life, but I don't know if I ever quite communicated what I saw when I said it. But in my mind it was a tall, proud city built on rocks stronger than oceans, wind-swept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. That's how I saw it, and see it still. (David Fromm, "Is America Still the ‘Shining City on a Hill’?: If the eyes of all people are upon America now, they are not witnessing an edifying spectacle", The Atlantic (1 January 2021)).

Pix Credit New York Times

 Indeed, the President reminded on in his message: "And at the height of the Cold War and the righteous crusade that he led to defeat atheistic communism, President Ronald Reagan proclaimed 1983 to be the Year of the Bible." (Presidential Message Commemorating 250 Years of the Bible in America). The object here is to remind one of the strong connection between the Bible, and Biblical cognitive orientations, as an inextricably important part of the fabric, at least historically, of the political life of the Republic.  In a period in which the fundamental political line is built on the theme of a restoration to a golden age, that historical connection is an important element. "Together, we will honor Holy Scripture, renew our faith, usher in a historic resurgence of religion on American shores, and rededicate the United States as one Nation under God." (Presidential Message Commemorating 250 Years of the Bible in America).

Life and Death: The U.S. Presidential Message on Easter and the Easter Homily of Pope Leo XIV

 

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In a way that reflects the essence of the end of Holy Week, U.S. President Trump issued his Easter Statement and  Pope Leo XIV his Easter Homily.  

The Pope focused on the mortal fear of and liberation from death. But this is not a death of the body he was speaking to; he was speaking to the power of death over mortals. "Death has been conquered forever; death no longer has power over us!" Death becomes a semiotic signific for the human condition. "From within, this power threatens us when the weight of our sins prevents us from “spreading our wings” and taking flight, or when the disappointments or loneliness we experience drain our hope. . . From without, death is always lurking. We see it present in injustices, in partisan selfishness, in the oppression of the poor, in the lack of attention given to the most vulnerable." (Easter Homily).

The President spoke to restoration, release and victory for humans and their collectives. He spoke to the price of such restoration and release in terms of sacrifice. “Death is swallowed up in victory.”(quoting 1 Corinthians 15:54). The Vulgate makes it clearer, death has been absorbed (Absorpta est mors); the difference is telling--to swallow is to ingest into the body; to absorb is to digest that which is swallowed. The President spoke to that promise of salvation through resurrection not in the next life but in this as a victory that evidences that absorption of death; and not just as an individual engagement but one for the nation: "As we rejoice in this Easter season, we are reminded that the life of Jesus Christ and the truths of the Gospel have inspired our way of life and our national identity for 250 years. From the Christian patriots who won and secured our liberty on the battlefield and every generation since, the love of Christ has unfailingly guided our Nation through calm waters and dark storms."(Easter Statement).

But has death been ingested or digested? In what and how is that victory received. . . or embedded? It is on this note, the note of the dialectics between life and death; between the corruptible and the incorruptible; between the Kingdom of the flesh and  the Kingdom of God; between a victory that is swallowed and one that absorbs; it is about those dialectics that both men danced, and that calls for further reflection. It m then be that there is value in concluding this Easter greeting with the longer context of the passage to 1 Corinthians 15:50-42-55 to which the president quoted and to which the Pope alluded. The passage is from the King James version, which requires (now deliberately) more measured reading for the oscillating binaries that are at last resolved:

42So also is the resurrection of the dead. It is sown in corruption; it is raised in incorruption: 43It is sown in dishonour; it is raised in glory: it is sown in weakness; it is raised in power: 44It is sown a natural body; it is raised a spiritual body. There is a natural body, and there is a spiritual body. 45And so it is written, The first man Adam was made a living soul; the last Adam was made a quickening spirit. 46Howbeit that was not first which is spiritual, but that which is natural; and afterward that which is spiritual. 47The first man is of the earth, earthy: the second man is the Lord from heaven. 48As is the earthy, such are they also that are earthy: and as is the heavenly, such are they also that are heavenly. 49And as we have borne the image of the earthy, we shall also bear the image of the heavenly.

50Now this I say, brethren, that flesh and blood cannot inherit the kingdom of God; neither doth corruption inherit incorruption. 51Behold, I shew you a mystery; We shall not all sleep, but we shall all be changed, 52In a moment, in the twinkling of an eye, at the last trump: for the trumpet shall sound, and the dead shall be raised incorruptible, and we shall be changed. 53For this corruptible must put on incorruption, and this mortal must put on immortality. 54So when this corruptible shall have put on incorruption, and this mortal shall have put on immortality, then shall be brought to pass the saying that is written, Death is swallowed up in victory. 55O death, where is thy sting? O grave, where is thy victory? 56The sting of death is sin; and the strength of sin is the law. 57But thanks be to God, which giveth us the victory through our Lord Jesus Christ.

_____

42 sic et resurrectio mortuorum. Seminatur in corruptione, surget in incorruptione. 43 Seminatur in ignobilitate, surget in gloria: seminatur in infirmitate, surget in virtute: 44 seminatur corpus animale, surget corpus spiritale. Si est corpus animale, est et spiritale, sicut scriptum est: 45 Factus est primus homo Adam in animam viventem, novissimus Adam in spiritum vivificantem. 46 Sed non prius quod spiritale est, sed quod animale: deinde quod spiritale. 47 Primus homo de terra, terrenus: secundus homo de caelo, caelestis. 48 Qualis terrenus, tales et terreni: et qualis caelestis, tales et caelestes. 49 Igitur, sicut portavimus imaginem terreni, portemus et imaginem caelestis.

50 Hoc autem dico, fratres: quia caro et sanguis regnum Dei possidere non possunt: neque corruptio incorruptelam possidebit. 51 Ecce mysterium vobis dico: omnes quidem resurgemus, sed non omnes immutabimur. 52 In momento, in ictu oculi, in novissima tuba: canet enim tuba, et mortui resurgent incorrupti: et nos immutabimur. 53 Oportet enim corruptibile hoc induere incorruptionem: et mortale hoc induere immortalitatem. 54 Cum autem mortale hoc induerit immortalitatem, tunc fiet sermo, qui scriptus est: Absorpta est mors in victoria. 55 Ubi est mors victoria tua? ubi est mors stimulus tuus? 56 Stimulus autem mortis peccatum est: virtus vero peccati lex. 57 Deo autem gratias, qui dedit nobis victoriam per Dominum nostrum Jesum Christum. 58 Itaque fratres mei dilecti, stabiles estote, et immobiles: abundantes in opere Domini semper, scientes quod labor vester non est inanis in Domino.

The complete Easter Homily and Eater Presidential Statement follows below with links to the original posting. 

Pablo Lerner on "Freedom of / from Religion in Pubic Spaces? About New Law Proposal in Israel"--Essay in the BYU Law International Center for Law and Religion Studies Blog

 

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 I was delighted to learn that my colleagues over at the Talk About: Law and Religion Blog, a blog (really a formidable essay site of the the International Center for Law and Religion Studies (ICLRS) at BYU Law, edited by co-editors are Dmytro Vovk (Director of the Center for the Rule of Law and Religion Studies, Yaroslav the Wise National Law University, Ukraine), and Amy Lynn Andrus (Associate Director of the ICLRS), with contributing editors are Jane Wise (former ICLRS Associate Director), and blog originator Donlu Thayer (ICLRS Senior Fellow) had recently published a quite interesting essay, authored by a long time colleague Pablo Lerner (Professor of law at the Zefat Academic College and the College of Law and Business in Ramat-Gan (Israel)) and first published at Talk About on 19 February 2026.

The essay is entitled  "Freedom of / from Religion in Pubic Spaces? About New Law Proposal in Israel." It is also reproduced below. Professor Lerner describes the object of the essay this way:

Last year a draft law was presented in the Israeli parliament regulating a variety of issues regarding religion in public spaces. In particular, the law prohibits public authorities from interfering with the putting on of, or the helping of others put on, tefillim (phylacteries) in public spaces. The draft law also prohibits public authorities from impeding the act of praying in a public space or public building. However, in a synagogue or educational institution, authorities may require that any prayer be conducted according to local Jewish custom. The draft law also establishes the duty to install a mezuzah (scroll case) in public buildings. 
One can study this draft law as part of a series of legislative initiatives launched by the parliamentary coalition composed of religious and right-oriented parties currently ruling in Israel; in that light, the draft law could be seen as the result of what has been defined as an alliance between religious-infused markers of identity and the current populist assault on constitutional democracy in Israel. This short post does not attempt to enter into cumbersome political questions but rather limits its analysis of the draft law’s text to seminal questions about the relationship between state and religion in Israel.  ("Freedom of / from Religion in Pubic Spaces? About New Law Proposal in Israel." )

My mind immediately wandered to Quebec (among other places in the liberal democratic West):

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Quebec Premier François Legault and Secularism Minister Jean-François Roberge announced that they will introduce a new law this fall to ban prayer in public spaces. The measure comes in response to what Roberge described as the "proliferation of street prayer" — a practice that has become synonymous with mass Islamist displays, particularly in the wake of pro-Hamas and pro-Palestinian demonstrations. Street prayer is no longer the image of quiet devotion. From Toronto to Times Square, it is political theater, often conducted en masse, blocking roads, obstructing entrances and projecting intimidation into the heart of civic life. (here)

Yet this was an effort that was strongly opposed by Christian faith communities for value their own evangelization practices (Quebec bishops slam proposed public prayer ban). And, indeed, Christian evangelism and the legal structures in places like the United States suggest a constricted space for State regulation, but not management: subject to reasonable and neutral time, place, and manner rules (and the avoidance of public disorder limits), everyone is welcome to preach the "good news" of their own faith communities to their hearty's content, or the requirements of their faith  but subject to public disorder limits as well.    

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And that suggests the issue for Professor Lerner--the nature and shape of neutrality in a State that acknowledges its foundational religious character. In the old days (and not so long ago), majority Christian or Muslim communities "solved"the issue through programs of hierarchically structured privileging. The contemporary approach is neutrality--but formal neutrality can be undone "in effect" in everyday life (as opposed to the abstracted space of theory or principle incarnated as text). In the context of great disparities of numbers, habits, expectations, and the like, faith communities may be effectively privileged by the way in which they can physically displace or occupy spaces in ways that suggest not neutrality by effective control on the ground. These are old problems; but for the most part they are problems left unattended precisely because they tend to stir "things" up. Yet this "stirring things up," when undertaken by a majority faith community, merely confirms in physical space, the occupation of virtual spaces which may be understood as the connection between the faith community and social-cultural expectations and baselines. When the displacing is undertaken by minority faith communities (or their smaller sub-communities) against the space assumed by the majority that displacement may seem to distort their relative societal "claims" to shared spaces. 

That is the conundrum that Professor Lerner explores but in the context of a "Jewish" Israel where that context produces a certain irony, but one not unknown either to Judaism or for that matter to any of the Abrahamic religions: "According to the draft law’s explanatory notes, the reason for the proposed law is that “in recent years, we have witnessed cases in which the denial of the ability to wear tefillin or conduct Jewish prayer in the Israeli public sphere occurs, whether through bureaucratic restrictions or through public pressure . . . .”".  ("Freedom of / from Religion in Pubic Spaces? About New Law Proposal in Israel." ). This can be understood in one of two principal ways (there are others of course). The first touches on delineating "fairness" in sharing public spaces as between different religions (the essence of the problem highlighted by Quebec). The second touches on contests for control of shared spaces among sub-communities (sects) within a larger single faith community.  Here the issue touches not on Jewish-Christian-Muslim jostling for spaces, but as between different faith communities within Judaism. Yet Judaism merely provides an example of a much larger problem--the Abrahamic religions, Judaism, Christianity, Islam, and perhaps even that last of its incarnations as Marxism--have all fractured into a variety of sects the conversations and conflicts between them may be as intense and deeply felt as between the aggregated faith community and others.  Professor Lerner provides a window onto  a problem, the resolution of which is not easy, yet the intensity of the need for resolution is high.

These two ways of approaching the issue are united by  at least two issues that they reflect. The first is  personal to those performing (witnessing) their faith in public--variations of what one might call faith based communal self-actualization. One must, in this context perform publicly one's faith as a means of declaring one's faith allegiance and to comply with the dictates for conformity to the expectations of religious behavior that connects one more tightly to the community of believers in ways that are not hidden. That is an outward expression of personal reinforcement of faith. The second, and for the State perhaps more challenging int he context of providing structures for stability--is projected from out of the faith community and onto those who must witness these faith performances in public spaces. That is, that the personal performance of religion in public spaces is not merely personal to the individual but is directed toward the infidel (in its original sense of those who are not part of the community of the faithful). It is meant to perform evangelization in spaces where the infidel may be found--and thus found, perhaps converted to the faith. In that form, and under some circumstances, it can produce political instability in the sense of disturbing the relations among faith communities sharing a single political space. This is especially pronounced where evangelization is interpreted by another faith community as directed against them (and the faith community must feel targeted for all sorts of reason).  For some large faith communities, the two are intimately intertwined (See, e.g., Catechism of the Catholic Church, §§ 4-10; 849-855; 904-907). But that intertwining is contextual and varies widely, including in ways that belie the formal textual expectations for faith communities but appear in practice (eg Pakistan: UN experts alarmed by lack of protection for minority girls from forced religious conversions and forced marriage). These bring the realities of incarnated abstractions very very close to home in ways that can be deeply felt; and that is what separates the more cerebral and virtual world of formal text from the rougher world where the virtual assumes physical form in the physical spaces in which physical humans act, that is where they transform the potential expression of text into its specific performance in time, place, and space.

Over these trajectories are placed the political-economic framework within political cohesion is structured. These focus, in many liberal democratic states (at least recently) on formal neutrality (by the State) and open access (formally) to all groups, limited, to some extent where formal approaches may be overtaken by the functional consequences of facially neutral legal and operational structures. The result of these trajectories in multi-religious political communities is that the State faces quite difficult choices especially where the State operates within cognitive structures of formal neutrality (limited by corrupted intent) but in which faith communities feel what on the ground appears to be an unwilling obligation to engage in the evangelization efforts of (numerically) superior or powerful faith communities seeking to strip them of members, and perhaps position, 

 It is within this larger context that one can understand Professor Lerner's quite important analysis in the Israeli context, and not just in the Israeli context, but also within the context of the management of interactions as expressed in and through public spaces among different sub-faith communities all seeking not just self-affirmation but evangelization among a specific target population (members of the Jewish community perceived as in need of the correction of religious error in belief and practice). This "internal dialogue" among Jewish sub-communities has been ongoing in sometimes very public forms since the time of the occupation (or association) of the Kingdom of Israel by the Romans. Likely before that as well (if for example one considers the controversy over the primacy or monopoly of Temple practice  after challenge by the Egyptian Jewish community in Elephantine (The Jewish Temple at Elephantine),and perhaps with more relevance, the quite contentious intro-Jewish religious divisions which was the religious state of affairs during the time  accepted as that of the ministry of Jesus (the well known Pharisees, Sadducees, Essenes, Zealots, Samaritans, Herotians, etc.). The religious and political fluidity n that sot of religious environment might well continue to serve as a source for "learning applied to contemporary problems.   

Professor Lerner suggests that the State of Israel appeared to solve the problem of friction within the greater Jewish community in time honored liberal democratic ways--time, place, and manner regulations . He notes both the explanation of the problem and the traditional approach this way: 

According to the draft law’s explanatory notes, the reason for the proposed law is that “in recent years, we have witnessed cases in which the denial of the ability to wear tefillin or conduct Jewish prayer in the Israeli public sphere occurs, whether through bureaucratic restrictions or through public pressure . . . .”This explanation can hardly be considered sufficient. First, most people who put on tefillin every day do so at home or at the synagogue and not in public places. Second, municipal inspectors do not generally interfere with the putting on of tefillin in public. While they have removed tefillin stands and fined those who set them up without proper authorization, such incidents have been relatively few and have been resolved relatively easily. So, why has the draft law been proposed? ("Freedom of / from Religion in Pubic Spaces? About New Law Proposal in Israel").

In effect, the State noted the problem in context with respect to the fulfillment of personal religious obligation  (to wear tefillin) and the importance of its evangelization objectives (through State management of tefillin stands).  Something else, then, might be at play in the marshaling of State regulatory power to move away from this approach to the one adopted. 

Professor Lerner suggests the context. The first speaks to history. These arguments are found in the draft law's explanatory note. That is that there ought to be special sensitivity toward the regulation of those essential symbols of Judaism that had been used as the instruments of thousands of years of persecution--which continues into contemporary times ("the proposed law aims to ensure that symbols for which and through which Jews were persecuted throughout generations will not become controversial in the Jewish state" Freedom of / from Religion in Pubic Spaces? About New Law Proposal in Israel").  Professor Lerner suggests that the explanation while powerful in itself loses punch in context. That context appears to favor, through the neutral language of the law, a particular preference of the State a particular sub-group among the Jewish community of the faithful within a State context that moves closer to a more intimate connection between that form of Jewish community and the State ("While this provision could not be characterized as having a specific theocratic flavor, it envisages at least a very particular understanding of the parameters used to define Jewish identity."  Ibid.). Professor Lerner also notes that liberal democracy continues to protect (though the limits and understanding of this is more contested now in virtually all liberal democratic constitutional systems) people against religion. That is that it protects religious and non-religious Jews against the annoyance or unwelcomness of evangelization, especially evangelization  of forms that appear to be privileged by the State. "Therefore, [Professor Lerner suggests] the draft law seems to embody the current parliamentary coalition’s religious populism by endorsing values of particular groups interested in fostering a specific lifestyle for the whole Jewish collective" (Freedom of / from Religion in Pubic Spaces? About New Law Proposal in Israel").

This possibility, born of possible intent and the interpretation of long running conflicts among Jewish cub-communities respecting authenticity, enhanced by parallel contests for the control of the mechanisms of State to add "umph," then, shapes consequence. And those consequences center on the definition and management of public spaces for religious expression. Here, Professor Lerner suggests the interpretive problems of the draft law. They include unintended consequences and the usual failures by a legislature to think things through. Yet those are the ordinary stuff of legislation that appears, like the3 common cold, in legislation all over the world and without regard to the lofty generative premises of a political system. 

That is not, however, the principal focus of Professor Lerner, who also and quite astutely notes--one runs up against our old interpretive "friends"--formalist neutrality (and with it its high though abstract ideals) on the one hand, and, on the other, the realities of context that can transform even the most glorious neutral principle into an instrument for displacement, privilege and effectively corrupting any sort of "level playing field" for the intertwined performance of personal religious obligation in communal setting, and evangelization within the broad umbrella that is Judaism, even in Israel. Jews in Herodian Israel might have  understood this better than their progeny in the contemporary State of Israel. The resonance and its politics, however is unavoidable and perhaps, given the unique context of Jewish life over the last two millenia, and the politics, internal to Israel, around the establishment of the State, perhaps to some extent sui generis.  

In Israel, the regulation of religion in public spaces reflects the status quo that existed during the Mandate. In 1947, the Israeli government reached an agreement with Orthodox groups that the government would not alter the regulations pertaining to Shabbat, kashrut (kosher foods), marriage and divorce, and the autonomy of the religious education system as it existed prior the establishment of the State of Israel. While the goal of this status quo was to find a compromise with Orthodox groups, it also served to protect the autonomy of Orthodox communities. The status quo has never been a static idea, and there have been shifts, clashes, and discussions over issues like the opening of shops, the use of public transportation on Saturdays, or the introduction of hametz (leavened grain products) in hospitals during Passover. Should the draft be approved, it could be seen as a new shift of the status quo in favor of strengthening Orthodox presence in the public space. (Freedom of / from Religion in Pubic Spaces? About New Law Proposal in Israel").

Encapsulated within this is the concern over the privileging of one of Judaism's faith streams as against the others. At stake is the control of the concept of "Jewish identity"--but much more to the point, the effort to reduce that "identity" to a single stream of variation within the aggregated Jewish faith communities. Yet if Jewish identity is to be understood in the plural (the way that Muslim and Christian identity is also multiplied by its various sects, some of which are quite large and powerful and some of which are not) the the use o the State to develop a political concept of a singular Jewish identity carries with it the challenge of avoiding the instrumntalization of that political identity with  a political choice about the privileging of some sub-communities over others within the variegated ecologies that is in its micro-lived manifestations that is modern Jewish identities on the ground. As Professor Lerner puts it: 

The question regarding uses of public spaces is also associated with the idea of equality (equal access of different religious groups to public facilities and spaces), but the draft law disregards equality under the rubric of fostering Jewish identity. If authorities must exercise this power in an equal and proportionate manner, could the possibility of other religious political groups setting up stands in the streets be rejected? And what about placing stands for secular purposes in clearly ultra-Orthodox neighborhoods? (Freedom of / from Religion in Pubic Spaces? About New Law Proposal in Israel"; and with respect to the last point consider: 'We Rattle the Public Order': Israeli Cops Shut Jerusalem 'Secularization' Stand for Haredim, Allow Tefillin Stand).

Of particular interest are two areas that Professor highlights respecting this quite difficult challenge.  The first touches on issues of process and "choice of [Jewish] law." The second touches on the use of the State to define what it means to be Jewish and through that process to exclude some who except in the eyes (and doctrine) of other members of the Jewish faith-family view themselves as Jewish. With respect to the first, Professor Lerner focuses on that part of the draft law that "provides that a dispute brought before the courts, relating to the draft law, should be decided by a judge who passed an evaluation showing that he knows how to use Hebrew Law as a tool for deciding issues of legal lacunae and for resolving disputes relating to this law. The draft law adds that no judge who has not successfully passed this evaluation shall be appointed to any forum." ("Freedom of / from Religion in Pubic Spaces? About New Law Proposal in Israel"; noting that the draft law defines Hebrew Law as "Torah law as practiced by the Council of the Chief Rabbinate and in accordance with its directives" Ibid, n. 8). Professor Lerner notes the slippery slope of choosing judges well versed in the interpretation of Hebrew law where there are various schools of interpretation corresponding to various Jewish sub-communities of the faithful.   This calls to mind the way other faith communities have handled similar challenges--Catholics consolidated  religious law, Protestants learned to live with fracture and loose confederation as against outsider; Muslims developed institutionalized schools of jurisprudence within a matrix of differentiated sub-communities in Islam (Sunni, Shia, etc.). For Israel the effect might be to bring Hebrew law more intimately connected with general legality  ("Hebrew law was included alongside Israeli Heritage, but even since then, and apart from questions of personal status, Hebrew law has fallen short of playing a significant role in Israeli law." Ibid.).

With respect to the second, and quite contentious issue in Israel, Professor Lerner notes:  

According to the proposal, a Jew is someone whose Judaism has been recognized by the Chief Rabbinate of Israel for marriage purposes according to Israeli law, or who meets the Rabbinate’s requirements for such recognition. This definition is different from the definition found in Section 4b of the Law of Return 1950, where Jew means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion. In Israel conversion, Reform and Conservative, at least done abroad, is recognized for purposes of immigration according to the Law of Return. However, the draft law attaches the definition of Jew to the definition of the Central Rabbinate, which excludes Reform and Conservative Judaism. ("Freedom of / from Religion in Pubic Spaces? About New Law Proposal in Israel").

The complications of this failure of coordination can be viewed in a number of ways. One of them is carelessness; another is as an instrument to effectively modify the Law of Return from the side. Perhaps, and impossibly in the current climate, the resolution might require reshaping the Chief Rabbinate. One is back to the world of Biblical Judaism, but one with stronger State structures, more sophisticated jurisprudence and sharpened rivalries for evangelization and dominance among the many communities that together constitute contemporary Judaism. The draft law is in this sense symptomatic of larger issues that sometimes tend to dominate the internal life of religious communities, not just that of the Jewish community (except with respect to its own context). And to that extent there are lessons worth considering here applicable everywhere where religious interaction with the apparatus of multi-religious states, even those with a religious foundation, may find worth contemplating. But s is its alternative: that the State may or must choose among competing sub-communities and construct their systems of religious interaction on that basis. And that is not an problem of Israeli law; but one that touches all political systems that have not chosen the path of laïcité. . . . or of theocratic governance (the theory of which I once considered here). Israel has attempted the harder middle path and has chosen to consider its operation within Judaism as opposed to between Jewish and other faith communities in Israel. And that creates the problem and the goal the articulation of which ends Professor Lerner's essay: "There is nothing negative in trying to involve more people in liturgy and Jewish practices. Religion and tradition should be allowed to freely practice and thrive. But this should not be done by dodging basic principles of the rule of law and public order." ("Freedom of / from Religion in Pubic Spaces? About New Law Proposal in Israel").

The complete essay follows below and may be accessed in the original here. 

Pix credit here

An earlier essay of Professor Lerner that I discussed may be accessed here: Thoughts on Pablo Lerner, "Muslim Law in Israel", Essay in the BYU Law International Center for Law and Religion Studies Blog