Possible Supreme Court Nominees-- orthodoxy

Hamilton02 at aol.com Hamilton02 at aol.com
Sun May 3 15:45:11 PDT 2009

Greg's post and the exchanges leading from Rob's original  posting 
illustrate one of the core problems with discourse regarding  religion in the United 
States in the academy, and, frankly, in the Church.   There is an 
unfortunate tendency to claim orthodoxy -- which hides  actual discrepancies in the 
doctrine -- in both canon law and constitutional  law.  If anyone should be 
bucking claims to orthodoxy it should be  academics.
With respect to canon law-- it is open to various interpretations, and  
there can be legitimate debate over issues like the denial of communion.   
Moreover, the Church is not simply a private religious institution, but  also a 
sovereign that exercises political power using millions of dollars  
worldwide.  It is legitimate and appropriate for there to be a public  debate from 
outside the Church about whether refusal of communion to  public officials is 
appropriate.  Robert's comment took one position  that is held by many 
Catholics, as has been pointed out.  In fact,  criticism of the Church can be 
good for the Church as it is for every  institution.  
With respect to constitutional law, elites equally attempt to impose  
orthodoxy in arenas where there is legitimate debate.  There is no better  
example of that than the academic response to Employment Div. v.  Smith. I have 
just been through all of the commentary following  Smith and academic opinions 
were expressed as orthodox truth, which  covered up and falsified the fact 
that there were competing threads in the  doctrine.  Those expressions of 
orthodoxy were picked up by those who do  not specialize in the arena and 
repeated.  Not the brightest moment in the  history of the legal academy.
The Church hierarchy can claim hegemony over a particular interpretation,  
but that does not mean that religion scholars cannot or should not discuss  
both the interpretation and the claim to hegemony.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
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