Mirror of Justice

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Saturday, April 18, 2015

Cardinal George

 

I thank Rick for his kind invitation to offer personal thoughts about Francis Cardinal George, OMI. In my almost five years in Chicago, I would see the cardinal from time to time on business matters—mostly regarding the Church in public life and religious freedom subjects—at his residence or at his office, which was across the street from mine. These meetings were filled with his intelligence. Like Thomas More, the cardinal knew that God created the human person to engage God in the tangle of His mind.

But there was another aspect of the cardinal’s life that few people would have seen. He and I both received our cancer treatment and evaluation at the Loyola University Medical Center. On several occasions, our encounters were simple passings-by in the halls of the Bernardin Cancer Center of the Loyola medical center. On those junctures, there would be from him the friendly “how’s it going?” However, on one Thanksgiving week, we met in the same radiology imaging lab. I was waiting for an MRI when the cardinal entered. He was going to have a CAT scan. We spoke not about business matters addressing public life or religious freedom but about being Christians and priests. The ultimate issue of what is it all about came up.

His Eminence offered a simple and yet brilliant response. His answer to the question focused on salvation. As priests, our responsibility was and remains to help others on their paths to the salvation offered by Christ. But, as mere pilgrims, he mentioned that we, too, were on that same general path and not to forget it. I am confident he found his path without much difficulty and is now in the warm embrace of God. The cardinal mentioned that our suffering, especially from the same general disease we shared, was a gift to help us understand better what our human existence is about and the goal that is our destiny. He found the road that took him home to God. Aware of my own sinfulness, I still struggle to do the same.

 

RJA sj

 

April 18, 2015 in Araujo, Robert | Permalink

Friday, April 17, 2015

Cardinal George, R.I.P.

I just learned from Commonweal that Francis Cardinal George has died.  Here is the Chicago Tribune obituary.  God bless him.

When I was a visiting law professor, at the University of Chicago's law school, in 2007, I taught a class on "Catholic Social Thought and the Law."  It was a wonderful experience.  And, a highlight was our first meeting, over lasagna in the student lounge, at which Cardinal George was the guest speaker and participant.  That he took the time to come and inspire a group of law students meant a lot to the students, and to me.

I know that some other MOJ-ers knew Cardinal George well, and I hope others will share some more worthy thoughts about him, his work, his thought, and his gifts.  

April 17, 2015 in Garnett, Rick | Permalink

Tocqueville on "countercultural" churches

Peter Lawler has this essay, at the Imaginative Conservative, called "Tocqueville on Keeping Our Countercultural Churches."  Very interesting.  Here's a bit:

The danger in democracy is that Christian churches lose their capacity to be genuinely countercultural—or teach the truth that will be neglected “on the street” in middle-class democracy. And so the separation of church and state is to keep the church from being corrupted by excessive concern with endlessly egalitarian justice and the logic of the market. The separation is for the integrity of the church by limiting the claims for truth and morality of the democratic “social state,” which includes the democratic state.

But it’s both futile and even un-Christian to think that there could be, in the modern world, a state that favors or properly appreciates the church. Orestes Brownson, the greatest American Catholic thinker ever, said all the church should need and want from America is freedom to pursue its evangelical mission. That means, of course, that Americans should understand political freedom to be freedom for the church, for an organized body of thought and action. And we can see that the church flourished in America in the relative absence of politicized intrusion or corruption for a very long time.

The danger now, as always, is that the individualistic yet highly judgmental democracy—our creeping and creepy mixture of progressivism and libertarianism—will seek to impose its standards on our countercultural churches. 

April 17, 2015 in Garnett, Rick | Permalink

Wednesday, April 15, 2015

Mad Men, Religion, and Law: What If Religion Were Like Advertising? – Just Ask Planned Parenthood!

Mad Men Logo

April 5th, Easter Sunday, marked the return of the AMC series Mad Men for the second-half of its seventh and final season.  I confess to being a fan of the show, a television drama that tells the story of a Madison Avenue advertising agency across the span of the 1960s.  The writing and acting are strong, and the fashion and art direction faithfully reproduce the look and feel of the era.  Moreover, the epoch making events of the 1960s (the Kennedy and King assassinations, the Apollo 11 moon landing) and the political and cultural struggles that defined the decade (civil rights, Vietnam, women’s liberation, the sexual revolution, recreational drugs, and the counter-cultural lifestyles of both urban beatniks and commune-bound hippies) serve as a backdrop and source of thematic content for the lives of the characters who inhabit the world of the Sterling Cooper ad agency.

As a young child in the 1960s I recall some of this background – Bobby Kennedy’s assassination, the moon landing, my parents attending an anti-war rally – such that the show evokes, not a sense of nostalgia, but a searching recollection of earlier days that linger on the edge of memory.  No doubt the show has inspired a similar response in other viewers (together with genuine nostalgia for an older generation), a quality which, I suspect, accounts for some of its popularity.

Mad Men has become something of a social phenomenon, partly for reasons that are emblematic of the superficiality of our culture: the physical beauty and attractiveness of the cast members, a certain fascination with style, and the dynamic whereby that which was once irredeemably “retro” again becomes genuinely “hip.”  But the show is in fact deserving of serious attention in that it provides a kind of portrait that accounts for the world in which we live today.  The characters that inhabit the world of Mad Men reflect the disordered desire of the age – the pursuit of happiness conceived in terms of the acquisition and consumption – of things, people, and experiences – a pursuit that is ultimately vapid and lifeless, and so invariably leads to frustration and despair.  This mistaken understanding of happiness (and the use of human freedom to attain happiness) can have a corrupting influence not only on the culture generally, but on religion specifically – a point that I hope to bring into relief by highlighting two recent letters issued as part of Planned Parenthood’s religious “ministry” to its abortion patients.  In closing I draw some contrasts between advertising, religion (properly understood) and law.

The central character in Mad Man, Donald Draper, is the creative director at the Sterling Cooper ad agency – a man whose advertising imagination seems fueled by talent, cigarettes, cocktails and sex.  When we are first introduced to Don he is married with a wife and two children in Ossining, and a mistress in the Village.  Don’s theme, and one might say the theme of the 1960s as the decade progressed, is set in an early episode.  Rachel Menken, a client (with whom Draper later has an affair) is somewhat taken aback by Don’s brazen cynicism about life and love.  “For a lot of people love isn’t just a slogan,” she insists.  In response Draper doubles down (see the video here):

By “love” you mean a big lightening bolt to the heart, when you can’t eat, and you can’t work, and you just run off, and you get married, and you make babies.  The reason why you haven’t felt it is because it doesn’t exist.  What you call “love” was invented by guys like me to sell nylons.

You’re born alone and you die alone, and this world just drops a bunch of rules on top of you to make you forget those facts, but I never forget.  I’m living like there’s no tomorrow because there isn’t one.

Despite the suave appeal with which this epicurean nihilism is delivered, several characters come to see this as a dead end.  Joan Harris, the office manager and onetime mistress of one of the name partners, rejects the proposal of Bob Benson, a young executive and closeted gay man who needs a spouse to complete his cover.  Although he offers comfort and financial security for Joan and her child, she is adamant that she wants love and not simply “some arrangement.”

Similarly, Peggy Olson, Don’s former secretary and creative protégé, has risen to the top of the profession.  Despite the success of her career, and notwithstanding the meanderings of youth and the sexual experimentation of the era, Peggy longs for a relationship of real love and serious commitment – one that manifests itself in marriage and children.  “What did I do wrong?” she tearfully asks Don during one late night brainstorming session (see the video here).  “You’re doing great” he assures her, which, judged by his own standards of domestic success, is not untrue.

In the recently aired season opener, Peggy refuses to sleep with a guy on the first date.  When her companion remarks that she is “so old fashioned” she tells him that she’s “tried new fashioned” but intimates that it just doesn’t work. 

Despite these dissenting views, Don’s morbid, albeit stylish, philosophy dominates the lives of various characters on the show who do indeed live as if there were no tomorrow.   Roger Sterling, the endlessly charming and philandering name partner of the agency, divorces his wife of over twenty years for his then secretary, whom he also later divorces, experimenting with LSD and orgies with twenty-somethings.  Younger functionaries within the agency fair no better.  Trudy Campbell, the wife of Pete, an ambitious young account executive, experiences a similar emptiness notwithstanding their growing material success.  “Is this all there is?” she asks, despairing that she already knows the answer.  Even after the couple have a child and leave Manhattan for a house in Westchester, Pete, seduced by what the culture tells him (a culture that he helps to create through his work at the agency), pitifully concludes “I have nothing.”

Pete thinks he has nothing because he has been taught to want everything.  Advertising is a dynamo that fuels a ceaseless pattern of consumption, an insatiable drive to acquire more and more.  Draper stokes the embers of an undying lack of satisfaction in making a pitch to a potential client, encouraging them to switch agencies (see the video here):

You’re happy with 50 percent?!  You’re on top and you don’t have enough.  You’re happy because you’re successful, for now.  But what is happiness?  It’s a moment before you need more happiness.  I won’t settle for 50 percent of anything.  I want 100 percent.  You’re happy with your agency?!  You’re not happy with anything!  You don’t want most of it!  You want all of it!  And I won’t stop until you get all of it!

Perhaps not surprisingly, the most poignant ad campaigns debuted by the copywriters on the show focus not on satisfaction of the insatiable.  They focus on the themes of family, commitment, stability, and fidelity – not the new values of the Space Age, the pill, and rock and roll, but the “old fashioned” values that helped to build the country and that sustained it over time.  The irony of the show reflects a post-post-modern sensibility.  We know that society cannot do without the family (which is betrayed at so many turns) but we mock it anyway, claiming that its demands are unrealistic and inevitably end in hypocrisy (though perhaps cognizant that our mocking helps to make this domestic failure a self-fulfilling prophesy).

At the end of the first season (see the video here), Don delivers a powerful campaign for the new Kodak slide-projector naming it "The Carousel.”  He movingly describes how it “lets us travel the way a child travels – round and round and back home again, to a place where we know we are loved.”  In the closing scene of the episode Don “turns round” and “comes back” to his wife and children at the family home, only to find them no longer there.

In the hands of an artful copywriter, two sisters dividing a Popsicle is not the equal allocation of a consumer item (see the video here), but the ritual of sharing at the heart of every family: “Take it, break it, share it, love it.”

When the agency is in danger of losing the Heinz Beans account, Don and Meagan (his former secretary and second wife) turn to the family once again (see the video here).  “We’re all so busy, and we rush around, and it will probably always be like that,” Megan explains, “but a mother and child and dinner.  That’ll never change” – a story that gives rise to the slogan “Heinz Beans . . .  Some Things Never Change.”

Similarly, in the mid-season finale of the seventh and concluding season, Peggy delivers the winning campaign for Burger Chef (see the video here).  The real world American dinner table is, she says, a place of conflict between the generations, “with the TV always on and Vietnam playing in the background . . . and you’re starving, and not just for dinner.”  But Burger Chef is clean and safe, where families can truly come together.  “There may be chaos at home,” she says, “but there’s always ‘Family Supper at Burger Chef.’”

The dissonance between the ads that Don crafts for his clients and the reality of his own family life and background eventually catch up to him, building to a kind of self-hatred.  In pitching a campaign to sell Hersey’s chocolate bars (see the video here), Don fondly recalls how his father would tussle his hair and reward him for cutting the lawn with a treat from the local candy store, and how the Hersey’s bar that he chose is now always identified with his father’s love.  The story is a complete fabrication – a yarn of faux sincerity meant to rope the client and its customers in.  The viewer of earlier episodes knows the story is false, but now the lie becomes public as Don is moved to expose his true identity.

Don’s whole life has been a lie.  Don Draper is in fact Dick Whitman, an awkward, impoverished farm boy from West Virginia whose father was a drunk and whose mother was a prostitute who died in childbirth.  His widowed step-mother sought help from her sister who raised him in a whorehouse in Pennsylvania.  Wounded in Korea, he assumed the identity of another soldier, killed in battle, stealing his dog tags.  He builds a new life as Don Draper, but this American success story is only faintly Gatsby-esque.  He does not seek to “romp like the mind of God,” only to use his agile mind to impress the client and land the next account.  Nor is he driven by the great love of a Daisy Buchanan or any one woman, only the momentary pleasure of many women.  He is a serial adulterer – bedding the freelance artist who works for the agency, bedding his daughter’s elementary school teacher, bedding the female client and the male client’s wife, bedding the firm’s consumer research consultant, bedding his secretary (two of them), bedding the upstairs neighbor.  Like the world of advertising, Don’s life is forever in flux, but the one constant is that his libido always makes copy.

Peggy, Don’s apprentice, learns to tell the big lie as well – the lie that bestows a new identity and makes possible a new life.  Among all her co-workers, Don alone discovers that Peggy has had a child out-of-wedlock, and visits her in the maternity ward of the sanatorium.  Don tells her to “do whatever they say to get released” so that she can move on with her life.  “This never happened,” he assures her.  “It will shock you how much this never happened.”

Lives built on lies are truly mad indeed.  Although I may be proven wrong with the concluding episodes, I tend to think that the ultimate theme of the series is an elaborate play on the words of the show’s title.  “Mad Men” doesn’t simply refer to the Madison Avenue address of New York advertising executives. Rather, those whose job it is to generate support for this product or that, to engage in the art of manufacturing desire for the acquisition and consumption of things, are truly mad.  The substance of their lives is triviality.  Their job is to spin lie after lie – even when artfully mixed with some measure of beauty and truth.  Those whose job it is to seduce others are themselves seduced – not by the individual messages that they spin, but by the message implicit in all of them: You will be happy only in having more – more money, more things, more power, more sex, and one more drink. Their lives are hollow – a tragic nothingness masquerading as something, as deep as the ink on the page, as sincere as the glossy smile of a magazine cover, as permanent as the thirty-second spot aired in prime-time. 

The opening credits do more than simply hint in this direction (see the video here): The dark silhouette of the main character arriving with his briefcase at the office, transposed with various ad campaigns, as the world collapses and he descends, falling into oblivion – the suicide plunge from a Manhattan office tower of an advertising executive gone mad.  The images of his work and the chaos of his life drift past, but instead of colliding with the pavement below the silhouetted figure then appears on the office sofa, cigarette in hand, unfazed, cool beyond words.  Truly mad indeed.

What does all this – what does the world of advertising – have to do with religion and with law?

John Paul II eloquently diagnosed the malady at the heart of a consumerist culture.  It involves “a direct appeal . . . to [people’s] instincts – while ignoring in various ways the reality of the person as intelligent and free – then consumer attitudes and lifestyles can be created which are objectively improper and often damaging to [their] physical and spiritual health.” (Centesimus Annus ¶ 36).  Sadly, the outstanding feature of the developed countries in the West is “an excessive promotion of purely utilitarian values, with an appeal to the appetites and inclinations toward immediate gratification” (¶ 29).  The danger in a society of this sort is that it lacks “a correct scale of values” (¶41) such that its members come to believe that a style of life “is presumed to be better when it is directed toward ‘having’ rather than ‘being’ and which wants to have more, not in order to be more but in order to spend life in enjoyment as an end in itself.” (¶ 36). 

The proper response to this phenomenon is not so much legal as it is cultural.  Indeed, in a society that values a robust right to freedom of expression, the legal response to advertising must be somewhat circumspect.  Although occasions for regulation (i.e. “false advertising” as in the case of fraud and other forms of misrepresentation) do exist, these must be narrowly defined. 

The cultural problem is at its zenith when the appeal to “appetites and inclinations toward immediate gratification” becomes commonplace, indeed, when it becomes commonsense.  Here, Don Draper’s explanation of advertising in the pilot episode is most telling (see the video here):

Advertising is based on one thing: happiness.  And do you know what happiness is?  Happiness is the smell of a new car.  It’s freedom from fear.  It’s a billboard on the side of the road that screams with reassurance that whatever you’re doing, it’s O.K.  You are O.K.

The strategy of affirming the individual in his or her life choices (whether it involves a new car, a brand of deodorant, or a younger spouse) applies even where the product or service promoted is lethal, like Lucky Strike cigarettes (a signature account for Sterling Cooper), or, although not part of the Sterling Cooper portfolio, so far as we know, abortions courtesy of Planned Parenthood. 

Draper’s description of the essence of advertising as personal affirmation – “You are OK” – is eerily similar to the idea of religion present in two recent letters (see the links below) that Planned Parenthood has offered as part of its “ministry” to women who are contemplating abortion and women who are post-abortive.

The first letter, from Planned Parenthood’s “Clergy Advisory Board,” states that the purpose of the letter is “to support you in your decision.”  It assures women that “there are clergy and people of faith from all denominations who support women making this complex decision.”  In other words, you can be confident that “You are OK” in choosing to abort your child because other people think you are OK.   The letter tells women: “Allow yourself to be at peace with your decision.  God loves you and is with you no matter what you decide.  You can find strength, understanding, and comfort in that love.”  And if a twinge of doubt creeps in, no worries.  You will be affirmed.  “If you’d like to speak with a clergy person, your local Planned Parenthood health center can refer you to someone who will [sic] be supportive of you and your decision.”

The second letter, from Planned Parenthood’s “Religious Affairs Committee,” likewise states that its purpose is to support the woman “in whatever course you choose.”  Given the fact that Planned Parenthood clinics actually have abortion quotas to meet their operating budgets (a fact established based on internal Planned Parenthood documents and the testimony of former clinic workers, see here, here and here) they are (like any good business) likely to be more supportive of some courses of action rather than others.  Indeed, the letter is in no way concerned with women who choose to give birth.  Rather, the entire purpose of the letter is to affirm the woman who has had an abortion or who is contemplating one, but who may have misgivings because of her religious faith.

To that end, the second letter treads deeper into theological waters than the first – at least as deep as a theology of self-affirmation will go.  It boldly declares that “the decision to have an abortion will not threaten your relationship with God.”  “God is not angry with you and will not punish you for any choice you have or might make.”  Instead, the letter postulates: “If you have thoughtfully decided to have an abortion then you should be at peace with your decision.”  The person must be affirmed even when her own conscience may indicate otherwise.  Thus, the letter says that experiencing sorrow, doubt, depression over an abortion “does not mean that your decision was a bad one” only that you are a “sensitive person.”

Of course God (at least the God of Judaism and orthodox Christianity) does love and affirm every person, even women who have abortions.  But this love and affirmation does not extend to every action undertaken by the person. This is because some actions are sinful – they impair the good of individuals, they cause others to suffer injustice, and they constitute a rejection of God’s love.  John Paul II famously made this very point in speaking directly to women who are post-abortive.  He bluntly states that “what happened was and remains terribly wrong,” but the tragic choice of abortion does not preclude God’s love.  By confronting what happened and “fac[ing] it honestly” God stands ready “to give you his forgiveness and his peace in the Sacrament of Reconciliation” (Evangelium Vitae  ¶ 99).  The person who engages in sin is not OK, but the offer of God’s loving mercy carries with it real hope and the promise of transformation.

By contrast, a God who offers only self-affirmation, a God who doesn’t teach the sinner, a God who doesn’t challenge the individual, a God for whom truth is irrelevant –for whom there is no moral truth, no good and evil, only the sanctity of “choice” – is a God made in our own image – a God fashioned by advertising executives, a God for Mad Men.  “Whatever you’re doing, it’s OK.  You are OK.” 

Father Alexander Schmemann, the famous Russian émigré, Orthodox priest, and longtime professor at St. Vladimir’s Seminary, perfectly captured this “Gospel of Self Affirmation” to which both Don Draper and Planned Parenthood give voice (here):

Now in our own day . . . it is always in the name of good, of freedom, of concern for mankind that people are enslaved and murdered, deceived, lied to, slandered and destroyed.  “Every evil screams out only one message: ‘I am good!’” And not only does it scream, but it demands that the people cry out tirelessly in response: "You are good, you are freedom, you are happiness."

Religion, at least the Christian religion, is not like advertising.  Advertising is about seduction.  Religion – at least the Christian religion – is, as Chesterton said, “a romance,” “a love affair.”  It is the great love story – God’s courtship of humanity.  It is the sacrifice of the Bridegroom for his bride, the Church.  And this, despite our inconstancy, our infidelity, our serial adultery – chasing one false idol after another that, once unveiled, always reveals an image of the idolater – it shows us an image of ourselves that says “Whatever you’re doing, it’s OK.  You are OK.”

Law, like religion – traditional religion, or religion that is not post-modern – does not scream “You are OK.”  Although (as per H.L.A. Hart), not every law is a command, not every legal ordinance is a “primary rule.”  Still, the law instructs and directs.  It distinguishes right from wrong to preserve justice and defend the public order.  And to those who violate its dictates the law says: “You are not O.K.  You harmed another.  You violated the public trust.  You must now render to the individual who has been injured and to the community as a whole that which is due, that which your transgressions failed to satisfy.”

While religion, at least the Christian religion, is not like advertising, it is like law: “You shall not kill.”  It is like law because Christianity (like Judaism) is fundamentally about a relationship with God.  The rules of Christian morality reflect principles meant to preserve and foster that relationship in its integrity.  “If you love me you will keep my commandments” (John 14:15).

Of course, we all desire some affirmation, and Christianity affirms the human person repeatedly, and in a profound way.  “You are a child of God!  You are God’s beloved!”  But this affirmation is an acknowledgement of the truth of our inmost being, our most basic identity and thus our only true desire.  It is not an affirmation of our ephemeral desires for the next girl or boy, the next drink, the next client, the next thing.  Indeed, desire for a person without love (i.e. real love, the gift of self for the benefit of the beloved) is not desire for a person, but a thing, an instrument, and thus only a distraction.

There is, in man, says John Paul, a “contradiction in his heart between the desire for the fullness of what is good and his ability to attain it, and above all, the need for salvation which results from this situation” (Centesimus Annus ¶ 13).  “You have made us for yourself O Lord, and our hearts are restless, until they rest in you” (St. Augustine, Confessions, bk. 1).  Only an infinite love can satisfy an infinite desire.

April 15, 2015 | Permalink

Catholic Legal Theory: In Person

The Ninth Annual John F. Scarpa Conference on Law, Politics, and Culture will be held at Villanova Law on Friday, April 24, 2015.  The topic of this year's conference names the project that has for more than a decade animated this blog: Catholic legal theory.  The conference program is here.  We'll see what "the God of surprises" has in store!

I am exceedingly grateful that a number of the longtime contributors to this blog will be speaking at the conference, which is open to the public.  For the benefit of those who can't attend, conference speakers may later share their contributions here on MOJ. 

April 15, 2015 in Brennan, Patrick | Permalink

Education as a "non-family enterprise"

On the campaign trail in Iowa, while answering a question about the Common Core, Ms. Clinton referred to "education" as "the most important non-family enterprise in the raising of the next generation[.]"  Some have pointed out that this comment overlooks the growing reality of home-schooling. In any event, it might be time for Catholics (and others!) to review Gravissimum educationis (1965), the Second Vatican Council's Declaration on Christian Education: 

Since parents have given children their life, they are bound by the most serious obligation to educate their offspring and therefore must be recognized as the primary and principal educators.(11) This role in education is so important that only with difficulty can it be supplied where it is lacking. Parents are the ones who must create a family atmosphere animated by love and respect for God and man, in which the well-rounded personal and social education of children is fostered. Hence the family is the first school of the social virtues that every society needs. It is particularly in the Christian family, enriched by the grace and office of the sacrament of matrimony, that children should be taught from their early years to have a knowledge of God according to the faith received in Baptism, to worship Him, and to love their neighbor. Here, too, they find their first experience of a wholesome human society and of the Church. Finally, it is through the family that they are gradually led to a companionship with their fellowmen and with the people of God. Let parents, then, recognize the inestimable importance a truly Christian family has for the life and progress of God's own people.(12)

The family which has the primary duty of imparting education needs help of the whole community. In addition, therefore, to the rights of parents and others to whom the parents entrust a share in the work of education, certain rights and duties belong indeed to civil society, whose role is to direct what is required for the common temporal good. Its function is to promote the education of youth in many ways, namely: to protect the duties and rights of parents and others who share in education and to give them aid; according to the principle of subsidiarity, when the endeavors of parents and other societies are lacking, to carry out the work of education in accordance with the wishes of the parents; and, moreover, as the common good demands, to build schools and institutions.(13) . . .

April 15, 2015 in Garnett, Rick | Permalink

Monday, April 13, 2015

"Education as a Matter of Social Justice"

Archbishop Chaput explains, here, that and how "education is a matter of social justice."  More to the point, it is unjust for a political community to refuse to support parents who chose schools other than traditional public schools for their children.  John Coons said it so well here ("School Choice as Simple Justice").  And, Nicole Stelle Garnett and I tried our hand, a while back, in this paper ("School Choice, the First Amendment, and Social Justice").

April 13, 2015 in Garnett, Rick | Permalink

Douthat on Nisbet and "The Quest for Community"

This is well worth a read.   A bit:

What was Nisbet’s insight? Simply put, that what seems like the great tension of modernity—the concurrent rise of individualism and collectivism, and the struggle between the two for mastery—is really no tension at all. It seemed contradictory that the heroic age of nineteenth-century laissez faire, in which free men, free minds, and free markets were supposedly liberated from the chains imposed by throne and altar, had given way so easily to the tyrannies of Mussolini, Hitler, Stalin, and Mao. But it was only a contradiction, Nisbet argued, if you ignored the human impulse toward community that made totalitarianism seem desirable—the yearning for a feeling of participation, for a sense of belonging, for a cause larger than one’s own individual purposes and a group to call one’s own.

In pre-modern society, this yearning was fulfilled by a multiplicity of human-scale associations: guilds and churches and universities, manors and villages and monasteries, and of course the primal community of family. In this landscape, Nisbet writes, “the reality of the separate, autonomous individual was as indistinct as that of centralized political power.”

But from the Protestant Reformation onward, individualism and centralization would advance together, while intermediate powers and communities either fell away or were dissolved. As social institutions, these associations would be attacked as inhumane, irrational, patriarchal, and tyrannical; as sources of political and economic power, they would be dismissed as outdated, fissiparous, and inefficient. In place of a web of overlapping communities and competing authorities, the liberal West set out to build a society of self-sufficient, liberated individuals, overseen by a unitary, rational, and technocratic government.

The assumption, indeed, was that the emancipated individual required a strong state, to cut through the constraining tissue of intermediate associations. “Only with an absolute sovereign,” Nisbet writes, describing the views of Thomas Hobbes, “could any effective environment of individualism be possible.”

April 13, 2015 in Garnett, Rick | Permalink

Is saying "No" to federal funds going to work for religious institutions?

That's one of the questions set up in this New York Times piece ("To Keep Free of Federal Reins, Wyoming Catholic College Rejects Student Aid").  A bit:

To the college’s leaders, rejecting government-backed aid was an expensive effort to defend against what they called growing government threats to religious freedoms. If you do not take the money, leaders argue, the government cannot tell you what to do.

“It allows us to practice our Catholic faith without qualifying it,” said Kevin Roberts, the college’s president, a Louisiana transplant who now wears a black cowboy hat to work in this town of 7,500. “It’s clear that this administration does not care about Catholic teaching.”

This might "work" - but, I feel sure, only for a while, only for some small institutions, and only to an extent.  The regulatory strings about which Catholic and other religious institutions might be concerned are and are going to be attached not only to student-loan funds but, increasingly, to accreditation decision, contracts, research grants, sports-conference membership (!), and the like.  I do not think, in the long run, the smaller institutions with very strong animating missions should think that they can avoid the struggle that the larger research institutions are going to have to wage.

April 13, 2015 in Garnett, Rick | Permalink

"There Are No Abortion Cakes"

Katha Pollitt has done what perhaps might be called the "service" of writing a book that argues unabashedly for what most Americans regard as extreme positions with respect to the issue of abortion.  With this piece, "There Are No Abortion Cakes," she continues that work, and attempts to leverage the recent events surrounding Indiana's RFRA-type law in support of those positions.  She concludes:

It's time for progressives who rallied against the Indiana RFRA to show the same energy and conviction and urgency in support of women's reproductive rights. At least thirty-eight states have feticide laws, after all—this is not an issue for just one state. (Consider, too, that about 10 to 20 percent of known pregnancies end in miscarriage.) If CEOs are concerned, rightly, that their LGBT employees be treated as equals in Indiana, they should show as much concern for their pregnant and potentially pregnant employees. The same RFRA laws that open the door to discrimination against LGBT people lay behind the Supreme Court's infamous Hobby Lobby decision, which permits business owners to use religion to deny their employees health insurance coverage for birth control.

I understand that same-sex marriage and reproductive rights are different: marriage is about love, and abortion is about freedom. There are no abortion cakes. But freedom is a bedrock American value, even when it's for women. . . .

April 13, 2015 in Garnett, Rick | Permalink

Assisted Suicide and the vulnerable

Debra Saunders raises -- or, reminds us of -- some very important issues and concerns regarding what appears to be the new push in many states for assisted-suicide legalization ("Help the Rich Not Get Too Much Care"):  

Gov. Jerry Brown spent time with Mother Teresa in Calcutta. His office won’t say if he’ll sign or veto an assisted-suicide bill. He knows what he should do. True compassion engenders striving to cure illness, relieve pain and offer warmth to those who are suffering. That is dignity.

Those who say they want the option of assisted suicide, said, Barnes, essentially are “pointing at a disabled person and saying, 'I don’t want to live like that.’” That’s not dignity.

April 13, 2015 in Garnett, Rick | Permalink

Sunday, April 12, 2015

Religious exemptions and recusants

Here is the post to which I mistakenly referred the other day:  I'm reading-while-running this bookGod's Traitor's:  Terror and Faith in Elizabethan England (which I had downloaded, as it happens, before the enactment, inaccurate depicting, unfair criticism, overwrought villification, and revision of Indiana's RFRA-type law) which includes, in its account of the Parliament of 1571, some interesting examples of very early discussions and debate about exemptions, conscience, and the "belief v. conduct" distinction.  Next up, I think:  Waugh's Edmund Campion:  A Life.  

April 12, 2015 in Garnett, Rick | Permalink

Law firms, marriage, and moral accountability

In yesterday's NYT, Adam Liptak notes that no major law firm will touch the SSM cases before the Supreme Court.  The explanations offered in the article by firm leaders and industry observers fall into three categories: 1) the issue is so controversial that taking on the representation will impact a firm's attorney recruiting, client retention, and staff morale; 2) firms recognize that there are no meritorious arguments against SSM; and 3) as Michael McConnell puts it, there is a powerful desire to "crush dissent" on the issue of SSM.

Explanation #2 appears to me to be a non-starter. Whether or not SSM is wise as a matter of policy or morally compelled as a matter of justice, I have a hard time believing that the issues surrounding its constitutional status are so one-sided that a firm would see no good-faith basis for litigation. There is, I believe, something to be said for explanations #1 and #3.

I'm reluctant to condemn categorically what's happened here, as we can easily fall into the trap of disclaiming any moral accountability for the cases and causes to which lawyers lend their efforts.  I believe that, at least in civil cases, lawyers bear some responsibility for the choices they make in client selection.  (I have explored these ideas more deeply here and here.)

Indeed, those who applaud the unwillingness of law firms to step up to defend prohibitions on SSM might look to an earlier era of professional ethics as a guide. David Hoffman’s Resolutions, considered by some to be the nation’s first legal ethics code, included the bold statement: “I am resolved to make my own, and not the conscience of others, my sole guide. What is morally wrong cannot be professionally right.” George Sharswood’s Ethics considered it “an immoral act to afford that assistance, when [the attorney’s] conscience told him that the client was aiming to perpetrate a wrong through the means of some advantage the law may have afforded him.”  According to the 1908 Canons of Professional Ethics, the lawyer “advances the honor of his profession and the best interests of his client when he renders service or gives advice tending to impress upon the client and his undertaking the exact compliance with the strictest principles of moral law.”

The inconsistency, of course, is that law firms are not routinely declining other controversial causes, even those that conflict with emerging social norms, nor are they giving even lip service to the existence of accountability to extralegal norms, much less to "the strictest principles of moral law." I'm not suggesting that we should return to the rhetoric of the 1908 Canons (which, I suspect, was empty rhetoric more often than not), just that there is precedent for the notion that lawyers should be morally accountable for the decisions that they, and their clients, make.  Will the SSM cases mark the beginning of an era in which firms, perhaps echoing themes from the Corporate Social Responsibility movement, make client selection decisions that are shaped by moral commitments? 

If our "Hobby Lobby" moment of morally engaged business organizations is going to extend to large law firms and the choices they make regarding the clients they'll serve, this could be a healthy development for the profession and broader society.  If, as I suspect, this is more about firms' unwillingness to court controversy on a rapidly strengthening social norm even when there are important constitutional issues to be resolved, this could be an ominous development for our profession's long tradition of providing a voice for unpopular causes.    

April 12, 2015 in Vischer, Rob | Permalink

Saturday, April 11, 2015

Has anything (that matters, in the end) changed?

Given (as it must be) that the coercive power of law will be used, even as I write (and in future), to punish men, women, and perhaps even children because they have been convicted of crimes, I wonder how those who will read and popularize Pope Francis's "Bull of Indiction of the Extraordinary Jubilee of Mercy" (here) will alter their own conduct and its authoritative effect.  I don't conflate or confuse divine law with human law.  The perpetrators of crimes matter, but so do the victims.  How should the higher law of "mercy" inform reasonable judgments concerning the operation of human law?  Should anyone think that God's mercy has recently been enlarged by the actions and/or words of a Pope?  I doubt it.  But, if I am incorrect, on what basis?  Is the divine law still authoritative?  Of course it is.  Nothing has changed, except the changeable.  The changeable is how the Church should minister to the modern world, but of course the Church's task has always been to serve the world she is given to save.  It's possible that the "Jubilee of Mercy" will turn out, sub specie etc., to have been the better or even best way to assist souls to get to Heaven.  Charity, however, requires that we never allow easy rhetoric in favor of "mercy" to occlude what makes it exigent in the first place, the divine judgment.  I simply don't understand the rhetorician who today claims that the Church "closes the door to mercy."  Two cheers for mercy, but mercy does, by all credible accounts, correct or complement what it presupposes.  

April 11, 2015 in Brennan, Patrick | Permalink

Thursday, April 9, 2015

"Of a Contented Spirit"

Following up on yesterday's post (UPDATE:  Which, for some reason, was not posted!  Sorry!) about the possible contemporary relevance of the English recusants, here are some lines from Lord Thomas Vaux, "Of a Contented Spirit":

WHEN all is done and said, in the end this shall you find:
He most of all doth bathe in bliss that hath a quiet mind;
And, clear from worldly cares, to dream can be content
The sweetest time in all this life in thinking to be spent.
 
The body subject is to fickle Fortune’s power,         5
And to a million of mishaps is casual every hour;
And death in time doth change it to a clod of clay;
Whenas the mind, which is divine, runs never to decay.
 
Companion none is like unto the mind alone,
For many have been harmed by speech,—through thinking, few or none;         10
Fear oftentimes restraineth words, but makes not thought to cease;
And he speaks best that hath the skill when for to hold his peace.
 
Our wealth leaves us at death, our kinsmen at the grave;
But virtues of the mind unto the heavens with us we have:
Wherefor, for Virtue’s sake, I can be well content         15
The sweetest time of all my life to deem in thinking spent.

April 9, 2015 in Garnett, Rick | Permalink

Shiffrin on Progressive Preference for Speech Over Religion

Professor Steve Shiffrin is an enormously thoughtful scholar of the First Amendment. He is a constant and welcome reminder to me that alignment in political views is in the end rather minor indeed in the greater scheme of scholarly affinity and insight. My own work has been very much influenced by Steve's even as his politics and mine differ in various ways.

Steve has a smart post on the religious accommodation controversy. In it, he picks up a theme that has characterized some of his work on the Speech Clause--that is, its arguably indefensibly broad modern scope. He writes:

Why do liberals value freedom of speech over freedom of religion? Why should the state tolerate hate speech on the basis of sexual orientation (not to mention race)? If permitting some religious individuals the ability to discriminate against gays and lesbians in the purchasing of products and services is a stigmatizing denial of equality, how much more stigmatizing is virulent hate speech? In addition, however difficult it might be for many liberals to muster any empathy for the evangelical Christian who feels a religious obligation not to serve gays or lesbians, the explicitly homophobic hate monger is surely worthy of substantially less respect which is to say – no respect.

Some liberals will say that the hate speech example involves speech, and discrimination is conduct. But speech is conduct, as is defamation, most forms of fraud, and perjury. Other liberals will say that in the area of free speech, we do not take the value of speech into account. This is true much of the time, but there are exceptions (obscenity, fighting words, commercial speech, near obscene speech, and private speech) and there should be more of them (depictions of animal cruelty targeted to sadists or masochists, gruesomely violent video games). Why shouldn’t this be one of the exceptions? Note these are the same liberals who believe that equality on the basis of sexual orientation should be a Constitutional right. In other words, they believe that homophobia like racism should be renounced in our Constitution. Of course, everyone should have a right to question the wisdom of our constitutional rights, even the equal protection clause, but that should not implicate a right to stigmatize and libel citizens on the basis of sexual orientation (or race).

It's an interesting set of questions. For more on the reasons for the decrease in broad American social investment in religious freedom by comparison with free speech, see Part IV of this paper (and in particular my friendly wager with Professor John Inazu about whether it is, or is not, only a matter of time before the Speech Clause suffers a similar fate).

April 9, 2015 in DeGirolami, Marc | Permalink

Wednesday, April 8, 2015

Pioneers and Police: Archetypes in Constitutional Law Scholarship

Increasingly I am coming to believe that much scholarship in constitutional law, at least as respects commentary about contemporary controversies, may be characterized as the opposition of pioneers and police.

The pioneers see the Constitution as essentially limitless territory meant for exploration. Like the explorers of the Age of Discovery, they believe that what they bring to new shores--their values, aspirations, ideals, and other political and cultural desiderata--is more important than what they find. The role of pioneering scholarship is to articulate these desiderata and attempt to explain how they actually represent an improved--indeed, an ever-improving--topography of the constitutional territory. But part of their role is also to elude and outfox the police, with whom they disagree fundamentally in perspective and disposition.

The police see the Constitution largely as mapped terrain--their terrain. True, a few points on the map are not well known--unsettled outposts to which few people travel. But the general geographical metes and bounds are fixed and have been established for years. The role of policing scholarship is to study and gain expertise about that map. Whatever desiderata the police bring to their office they are disposed to locate in the historical map itself. But their role is also to prevent the pioneers from fulfilling their own projects--to monitor the pioneers' new map-making and to disrupt it at those strategic moments when the police believe it to be improper, unwise, or worse.

Of course there are all kinds of scholarship in constitutional law that are not captured by these archetypes. But when it comes to the large body of scholarship that attempts to intervene in some contemporary controversy, the metaphor holds up tolerably well.

April 8, 2015 in DeGirolami, Marc | Permalink

Tuesday, April 7, 2015

Princeton follows Chicago's lead to defend academic freedom

At campuses across the country, traditional ideals of freedom of expression and the right to dissent have been deeply compromised or even abandoned as college and university faculties and administrators have capitulated to demands for language and even thought policing. Academic freedom, once understood to be vitally necessary to the truth-seeking mission of institutions of higher learning, has been pushed to the back of the bus in an age of "trigger warnings," "micro-aggressions," mandatory sensitivity training, and grievance politics. It was therefore refreshing that the University of Chicago, one of the academic world's most eminent and highly respected institutions, in the face of all this issued a report ringingly reaffirming the most robust conception of academic freedom. The question was whether other institutions would follow suit.

Yesterday, the Princeton faculty, led by the distinguished mathematician Sergiu Klainerman, who grew up under communist oppression in Romania and knows a thing or two about the importance of freedom of expression, formally adopted the principles of the University of Chicago report. They are now the official policy of Princeton University. I am immensely grateful to Professor Klainerman for his leadership, and I am proud of my colleagues, the vast majority of whom voted in support of his motion.

At Chicago and Princeton, at least, academic freedom lives!

Here are the principles we adopted:

“'Education should not be intended to make people comfortable, it is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom' . . . . .   Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn. Except insofar as limitations on that freedom are necessary to the functioning of the University, the University of Chicago fully respects and supports the freedom of all members of the University community “to discuss any problem that presents itself.” Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.

"The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University. But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University’s commitment to a completely free and open discussion of ideas. In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose.

"Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission. As a corollary to the University’s commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression. Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it."

April 7, 2015 | Permalink

Friday, April 3, 2015

Oman Blogging at CLR Forum

We've got Nate Oman (William & Mary) blogging with us for the month at the Center for Law and Religion Forum. Come on over and have a look at his very fine first post, Indiana and Doux Commerce, which responds to various reflections of the political theorist Jacob Levy (McGill) on the relationship of religious freedom and commerce. 

April 3, 2015 in DeGirolami, Marc | Permalink

Thursday, April 2, 2015

A couple of observations from John Marshall on the nature of political debate

I have the good fortune of presenting next week over lunch to the students in my law school's John Marshall Scholars program on the topic of John Marshall's private life. This seemed like a fitting topic in anticipation of their upcoming visit to the John Marshall House. In preparation, I've recently been reading My dearest Polly; letters of Chief Justice John Marshall to his wife, with their background, political and domestic, 1779-1831, by Frances Norton Mason. I came across a couple of quotations from Marshall that seemed worth sharing.

The first is from Marshall's Life of Washington, in his description of the political hysteria surrounding the deeply unpopular Jay Treaty. Marshall's contrast between the deliberate approach of the statesman and the intemperate quickness of populist critics reveals how little has changed since the 1790s in the manner in which public affairs are sometimes considered:

In the populous cities, meetings of the people were immediately summoned, in order to take into their consideration, and to express their opinions respecting an instrument, to comprehend the full extent of which, a statesman would need deep reflection in the quite of his closet, aided by considerable inquiry. It may well be supposed that persons feeling some distrust of their capacity to form, intuitively, a correct judgment on a subject so complex, and disposed only to act knowingly, would be unwilling to make so hasty a decision, and consequently be disinclined to attend such meetings. Many intelligent men, therefore, stood aloof, while the most intemperate assumed, as usual, the name of the people; pronounced a definitive and unqualified condemnation of every article in the treaty; and, with the utmost confidence, assigned reasons for their opinions, which, in many instances, had only an imaginary existence; and in some, were obviously founded on the strong prejudices which were entertained with respect to foreign powers. It is difficult to review the various resolutions and addresses to which the occasions gave birth, without feeling some degree of astonishment, mingled with humiliation, at perceiving such proofs of the deplorable fallibility of human reason. 

The second Marshall observation I thought I would share is from an autobiographical letter to Justice Story written in 1827. This observation, too, is about the debate over the Jay Treaty, from a distance of about thirty years:

As it was foreseen that an attempt would be made in the legislature to prevent the necessary appropriations, one or two of my cautious friends advised me not to engage in the debate. They said that the part which it was anticipated I would take, would destroy me totally. It was so very unpopular that I should scarcely be permitted to deliver my sentiments, and would perhaps be treated rudely. I answered that the subject would not be introduced by me; but, if it should be brought before the house by others, I should undoubtedly take the part which became an independent member. The subject was introduced; and the constitutional objections were brought forward most triumphantly. There was perhaps never a political question on which any division of opinion took place which was susceptible of more complete demonstration, and I was fully prepared not only on the words of the constitution and the universal practice of nations, but to show on the commercial proposition especially, which was selected by our antagonists as their favorite ground, that Mr. Jefferson, and the whole delegation from Virginia in Congress, as well as all our leading men in the convention on both sides of the question, had manifested unequivocally the opinion that a commercial treaty was constitutional. I had reason to know that a politician even in times of violent party spirit maintains his respectability by showing his strength; and is most safe when he encounters prejudice most fearlessly. There was scarcely an intelligent man in the house who did not yield his opinion on the constitutional question. The resolution however was carried on the inexpediency of the treaty. 

April 2, 2015 in Walsh, Kevin | Permalink

Two Items on the State RFRAs Contretemps

First, Professor Doug Laycock has a very good piece/interview at the Religion and Politics Blog.

Second, I participated in a Bloomberg Law podcast with Professor Robert Katz on these issues. I thought we had a useful exchange. At the end of the interview, however, Rob was asked a question about the relevance of Hobby Lobby to these matters, to which he responded essentially that the two were disconnected. I didn't get a chance to jump in (had to leave to teach class!) but I have a different view and thought this quote from Doug's interview was apt:

For the first time in American history, government had made it unlawful, at least if you were an employer, to practice a well-known teaching of the largest religions in the country. The same-sex marriage debate has the same feature. This attempt to suppress practices of the largest faiths is a new thing in the American experience. And this huge escalation in the level of government regulation of religious practices is of course producing a reaction from religious conservatives, and is part of the reason for the current polarization.

UPDATE: And a third item, see my colleague Mark Movsesian's thoughts.

April 2, 2015 in DeGirolami, Marc | Permalink

Wednesday, April 1, 2015

Convinced?

"The Catholic Church is convinced that every human being is created in the image of God" -- so pontificate the Bishops of the Church in Indiana: here.  "Convinced" by whom?  And who/what is the referent "Catholic Church" that has been "convinced?"  The metaphysics of the proposition is risible (and shameful).

A more promising intervention by the Bishops might begin as follows:  "The Holy Catholic Church teaches that . . . ."  And might then go on to observe that the salvation of souls depends on it . . . .

April 1, 2015 in Brennan, Patrick | Permalink

Indiana's Catholic bishops weigh in on the RFRA controversy

Here is a statement from Indiana's five Catholic bishops:

The recent passage of the Religious Freedom Restoration Act in Indiana appears to have divided the people of our state like few other issues in recent memory. We urge all people of good will to show mutual respect for one another so that the necessary dialogue and discernment can take place to ensure that no one in Indiana will face discrimination whether it is for their sexual orientation or for living their religious beliefs.

The Catholic Church is convinced that every human being is created in the image of God. As such, each and every person deserves to be treated with dignity and respect. This includes the right to the basic necessities for living a good life, including adequate healthcare, housing, education, and work. The Catholic Church teaches that the principle of religious freedom also is rooted in the dignity of the human person. Religious freedom is one of the most cherished rights in the U.S. Constitution. The rights of a person should never be used inappropriately in order to deny the rights of another. We are called to justice and mercy.

We believe that it is crucial that religious freedom be protected. As Pope Francis wrote in his apostolic exhortation, The Joy of the Gospel: “No one can demand that religion should be relegated to the inner sanctum of personal life, without influence on societal and national life, without concern for the soundness of civil institutions” (n. 183).

We support efforts to uphold the God-given dignity of all the people of this state while safeguarding the rights of people of all faiths to practice their religion without undue burden from the government.

April 1, 2015 in Garnett, Rick | Permalink

Religious freedom "among", not "against", civil rights

Following up on Marc's response to Dale Carpenter's post on the "weaponization" of RFRA:  Dale expresses concern about RFRA-type laws being used as a "sword against civil rights."  It is not my impression that those of us who support RFRA-type accommodation regimes expect or want them to be used in such a way.

As I see it -- and as I tried to set out in this short forthcoming paper -- the conversation about how to manage the conflict between some religious-liberty claims and some equality and non-discrimination claims has to proceed from an appreciation for the facts that "religious liberty" *is* a civil right and that the enterprise of protecting civil rights includes -- it has to include -- care for religious liberty.  Here is the abstract:

This paper expands on a presentation at a recent conference, held at Harvard Law School, on the topic of “Religious Accommodations in the Age of Civil Rights.” In it, I emphasize that the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in as many cases and to as many persons and entities as possible, in a sincere effort to welcome religious minorities, objectors, and dissenters as fully as we can into what Justice Harlan called “the dignity and glory of American citizenship”? What barriers exist to the promotion and achievement of civil-rights goals through religious accommodations and how might these barriers be overcome? Are civil-rights laws being designed and enforced in ways that guard against unintended or unjustified disregard for or sacrifices of the civil (and human) right to religious liberty?

April 1, 2015 in Garnett, Rick | Permalink

"Weaponizing"

Rather an unfortunate metaphor in the by-line of Professor Dale Carpenter's recent post: "What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights."

One might have thought, even relatively recently, that religious freedom was a "civil right." But no longer: it is now said to be the enemy of "civil rights." And I suppose that what is "weaponized" will depend on one's perspective. From a different point of view, one might instead believe that it is the vast arsenal of antidiscrimination norms, and the staggering expansion of the state's interest in vindicating specific sorts of dignitarian harms, that have been "weaponized." But Professor Carpenter need not worry about one small sword in Indiana or Arkansas; the armamentarium arrayed against it is truly stunning.

Here's how I see the situation, as described in my essay, Free Exercise By Moonlight, from which I'll post a few selections in the coming days as it is intimately connected to these topical concerns (footnotes omitted):

The modern expansion of the reach of the state has resulted in a concomitant increase in the kinds of recognition, and validation, that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good. People want to be dignified by the state, their self-worth to be accorded official validation, and they perceive state-countenanced indignities meant for the protection of religious freedom as real injuries demanding state remediation.

Yet offenses to dignity are only the most extreme example of the overall expansion of government interests. For we are now at some considerable distance from Smith’s dystopian warnings about the threat of anarchy or governmental impotence that would result from overgenerous religious accommodations. In a society in which the government assumes an increasingly large role in the life of the citizenry, more injuries are transformed into legally (and perhaps even constitutionally) cognizable rights. The number and type of state interests that qualify as “compelling” swell to match the new dignitarian and other harms caused by permissive religious accommodations. And the protection of rights becomes a zero sum game, as every win for religious accommodation is a legally cognizable, but unvindicated, loss for somebody else.

 

April 1, 2015 in DeGirolami, Marc | Permalink