The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

New Churches, New Movements

Further thoughts on the outcome of Dobbs


Steve closed his post on Dobbs with a hypothetical:

if Roe survives, it'd be despite a 6-3 Catholic majority on the Court. Would it make sense for a Catholic to pick a new religion, just because of what some of the six Catholic Justices do in Dobbs? That'd seem really strange to me; so would picking new views on the content of the law.

I propose a different analogy. Imagine that you are a longtime member of a church. The church professes to hold certain beliefs that hew closely to the written word of the scripture. During the selection process, new members of the clergy all espouse such orthodox views. Yet, once in power, those members of the clergy depart from scripture to factor in the demands of modernity. And those clergy keep takings actions that are inconsistent with the orthodoxies of the faith. As a general matter, it is difficult to remove clergy. Thus, a member may decide to leave that church, and find a different church that adheres to traditional doctrines of faith. Eventually, if enough people leave the church, the clergy will be preaching to empty pews. And, if those departure are consistent, a schism may form within the faith. These changes do not occur overnight, but there is a slow, gradual process towards separation.

I don't think these departing members would say they are switching to a new religion. Rather, they would say that the current clergy are not being faithful to the traditional doctrine of the faith–even though they professed such adherence during the selection process.

Now, this analogy breaks down for umpteen reasons. I don't think the analogy between originalism and religion is a good one–though critics of originalism likely will see it that way. I, personally, also would be really hesitant to leave a house of worship; my preference would be to reform it from the inside. But I think this analogy illustrates why some–including those who have corresponded with me–would be willing to look elsewhere to find more traditional practices of originalism.