Michael V. Hernandez (Dean, Regent), In Defense of Pluralism: Religiously Affiliated Law Schools, Olympianism, and Christophobia, 48 U. Tol. L. Rev. 283 (2017):
Daniel Webster observed that “Christianity, general, tolerant, Christianity, Christianity independent of sects and parties” was the foundation of our liberties and legal system. In the spirit of this tradition, I have explained in my scholarship that the law must zealously guard religious liberty for all, while the substance of law should be based on principles of truth knowable by and accessible to all and not on principles unique to one faith. In other words, a Christian-based jurisprudence does not inherently involve the imposition of uniquely Christian principles and, thus, is not theocratic.
This Essay responds to direct challenges to religiously affiliated educational institutions and explains why a principled pluralism rooted in the enduring traditions upon which this nation was built must include accommodating the right of religiously affiliated institutions to act in accordance with their faith principles. ...
The challenges to traditional religiously affiliated schools reflect what Kenneth Minogue, the late Emeritus Professor of Political Science and Honorary Fellow at the London School of Economics, termed Olympianism:
[T]he project of an intellectual elite that believes that it enjoys superior enlightenment and that its business is to spread this benefit to those living on the lower slopes of human achievement. ...
We may define Olympianism as a vision of human betterment to be achieved on a global scale by forging the peoples of the world into a single community based on the universal enjoyment of appropriate human rights.
Minogue warned that Olympianism commonly devolves into what he labeled Christophobia: the opposition to Christianity rooted in the fear of and opposition to Christ, His exclusive truth claims, and/or the followers who espouse them. The overt hostility to Christianity displayed by Chairman Castro and Professor Tushnet, allegedly in the spirit of tolerance, are two particularly ironic Olympian attempts to target religious liberty and expression.
The Olympian impulse to strip the public square of traditional religious influence is both ahistorical and contrary to our nation’s commitment to religious liberty. As Professor Samuel Calhoun has argued:
Anyone seeking to squelch religiously motivated argument and action exposes himself or herself as someone lacking a true commitment to diversity. Consider the illogical conclusion to Frank Rich’s New York Times editorial lambasting President Bush’s stem cell vetoes. Rich endorses the criticism of Senator Joe Lieberman by the Anti-Defamation League, which deemed his “incessant Bible thumping (while running for vice president in 2000) … ‘inappropriate and even unsettling in a religiously diverse society such as ours.’” Astoundingly, and ironically, Rich and the League appear quite content to exclude Bible-thumpers as legitimate participants in political debate in our “‘religiously diverse society.’” To them, diversity obviously has its limits.
A diverse discourse is valuable precisely because it contains points of view and leads to action that some participants will disagree with or even abhor. The clash of competing ideas will sometimes, perhaps often, create discomfort, but this is an inevitable cost of a genuine allegiance to democratic ideals.
Fortunately, a Christophobic outcome is far from inevitable. I remain hopeful that a consistently principled approach to liberty will prevail, and I look forward to working with my fellow deans and others to defend liberty for all, not just for an Olympian elite. I also look forward to working with fellow Christians to see the attributes at the heart of the Gospel — God’s love, mercy, grace, forgiveness, and redemptive power — demonstrated clearly and consistently to all.