Here are some of the highlights from the Religion & the Law symposium at Chapman Law School last week:
Prof. Charles Whitebread gave a summary of current religion clause jurisprudence. Most notably, anyone who wants to defend any religion in a school or government organization will have to answer Justice O'Connor's challenge: Why would we abandon a system that has worked so well for one that has worked so poorly for others? Of course, O'Connor is a very bad historian, as John Eastman pointed out later that evening, and so the answer to that question first requires a refresher in our constitutional development.
Robert F. Cochran discussed the trend of Catholics on the Supreme Court. He suggested that natural law theory offers an intrisically valuable base for jurisprudence, as the exercise of reason itself reveals natural law. It gives us a theory of higher values to aspire to and with which to hold our laws in conformity.
John Eastman criticized Justice O'Connor's schizophrenic view on the religion clauses. Everson (the case that incorporated the establishment clause some 50 years ago) was simply wrong--both as to the scope of the establishment clause and to its meaning (it never meant to bar religion per se, but only sectarianism). He answers O'Connor's charge by saying that yes, our system did work well, before we started mucking it all up! (He said it much more eloquently than that, of course.) Our founders saw religion as critical to an ordered civilization, which needs moral constituents. Without moral virtue, we will never be able to govern ourselves.
Unfortunately I had to leave before the final speaker, Ninth Circuit Judge Jay Bybee. Hopefully I can get the notes from one of the other attendees.