Document Type

Working Paper

Publication Date

1-23-2012

SSRN Discipline

Legal Scholarship Network; *Humanities - Forthcoming Areas; Religious Studies Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; REL Subject Matter eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Political Science Network

Abstract

This paper was written as a commentary chapter for a forthcoming book titled Matters of Faith Religious Experience and Legal Response Austin Sarat ed The book is based on a conference held at the University of Alabama School of Law in October 2011 Five papers were presented at that conference on the principal issues discussed the result was a stark 22 tie with the fifth paper by a historian valuable in itself but not taking sides on the disputed matters Given the normative orientation of legal scholars the normal course of business would be to say who is right But this comment instead focuses on a broader but perennial question the nature of tie games in law and legal scholarship in the area of law and religionChurchstate conflicts given the contested and incommensurable issues they involve are particularly prone to end in ties That fact has recently encouraged some scholars myself included to focus more on the tragic nature of churchstate law and the moral remainders that are inevitable in this field than on the comic search for a single value or approach that might resolve some of these disputes once and for all From that perspective rather than try to break the tie there may be more value in considering why churchstate issues are prone to end in ties and what if anything we ought to do or feel about it In this short paper I first examine the principal papers and oral discussion at the Matters of Faith conference which dealt primarily with two issues the HosannaTabor litigation and the ministerial exception and the question of whether government may strip taxexempt status and other subsidies or privileges from churches that engage in invidious discrimination and argue that they end clearly in a deadlock I then discuss several common methods employed by scholars in the field to resolve these deadlocks and argue that they are all unsuccessful The tie remains Finally for purposes of analogy I address another arena in which ties and the breaking of ties is common sports The similarities and differences between sports and law offer a useful way of thinking about the deadlock in law and religion I argue that in law and religion unlike in sports tiebreaking mechanisms are both necessary and impossible I conclude with some thoughts on what we might do to at least reduce the moral remainders inherent in churchstate conflict and find ways of keeping the participants involved in the law game without creating or further alienating illiberal groups within society The paper is still in draft and comments are welcome

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