March 07, 2014
"State's last witness says unrepentant homosexuals are going to hell"
Reading over How Appealing's links to the news coverage of the Michigan same-sex marriage "trial," I could not help but notice the sensationalistic headline in this post's title: "State's last witness says unrepentant homosexuals are going to hell."
On cross-examination of an economist testifying on behalf of the state, the plaintiffs' attorney asked: " "Is it accurate that you believe the consequence of engaging in homosexual acts is a separation from God and eternal damnation? In other words, they're going to hell?"
The admission of improper testimony in a bench trial does not matter much in itself, but is this really how the cross-examination of an economist should have been allowed to proceed? I have no special expertise in the law of evidence, but this question about the economist's religious beliefs does not seem relevant, even with respect to trying to prove bias of the sort that one can question expert witnesses about, and the prejudicial value of the testimony in any event would seem to substantially outweigh whatever probative value it might have.
(For whatever it might be worth to note, this was the same trial in which Sherif Girgis was not permitted to testify as an expert witness.)
What Is the Disposition of the Good Judge?
Tom's post below raises some important issues, but as Kevin says, our paper does not answer in a complete way the question of what constitutes the ideal disposition of the judge. What it does is to direct some attention to the question itself and to reconceptualize the intellectual projects of judges who ostensibly are said to be writing (and at times themselves purport to be writing) about constitutional theory as adverbial projects--projects about the quality of good judging. One might believe that in order to think well about judging, one needs to think first about the qualities, habits of mind, and dispositions of the good judge. But one of the themes of our paper is that interpretive constitutional theory has come so much to dominate scholarly inquiry in constitutional law that it is difficult even to understand other sorts of constitutional projects for what they are.
One of the reasons for this blind spot is methodological. You cannot tell very much at all about the habits of mind of the good judge by asking that judge to reduce to a writing his theory of constitutional interpretation. You won't get the information you are looking for (though you will get the chance to score some easy points and look clever by punching holes in his theory). Instead, you need to examine whom the judge admires, and why, and which "school" the judge aspires to join and be thought within, and which other judges are dispositional compatriots--all projects within the domain of intellectual history. But you also have to compare what the judge does in constitutional adjudication against what he says he does extrajudicially. That is, you need to be a good and careful doctrinalist, not in order to trap anybody but so that you can see the many ways in which constitutional law in practice complicates constitutional theory.
An additional advantage of making the move from theory to disposition is that it permits the scholar to criticize judicial pragmatism and restraint on their own terms--as dispositions rather than as theories of constitutional interpretation--and therefore to engage more directly and more truly with the sorts of projects in constitutional law that interest judges. Part III of our paper does just that. In its final section, we look to the example of Judge Henry Friendly, who was neither a pragmatic judge (here we respectfully disagree with Judge Posner) nor a restrained judge. Indeed, Judge Friendly always resisted such labels and never was particularly interested in what was then the dernier cri of Dworkinian moralism. But what, exactly, did Friendly stand for? The model of lawyerly craft and argument that he represented does little to enrich legal theory, and this has led some academic commenters to wonder whether Friendly will be forgotten by future generations. Perhaps so. But that may say more about the peculiar reputational preoccupations of the legal academy than about the much more interesting question of what dispositions make for a good judge. Lots of work remains to be done in thinking through that question.
March 06, 2014
In Search of Common Ground on Abortion
Ashgate Press has just published In Search of Common Ground on Abortion, edited by Robin West, Justin Murray and Meredith Esser. The collection of essays, which includes chapters by Lisa Schiltz and by me, stems from a symposium that was held at Georgetown University Law Center in the fall of 2009. The goal of the symposium was to "bring together pro-choice and pro-life scholars in an effort to explore the common philosophical, moral, or political ground that might be shared by thsee groups who so rarely come together." The book does a good job of reflecting the breadth of the symposium.
March 05, 2014
The actual but limited importance of judicial dispositions
Tom's comparison of judicial pragmatism and judicial restraint with Niehbuhrian Christian realism shows how it can help to understand each of these as appropriate dispositions when engaging in various forms of practical reasoning. Tom contends that Niebuhrian realism disposes religious and political activists "to combine vigorous advocacy with deep humility." He observes that good dispositions are virtues, and that such virtues "may be more powerful and determinative than the precise logic of analysis." And he concludes by asking about the value of judicial pragmatism and judicial restraint as providing an appropriate disposition toward the activity of judging.
Tom's comments and question helpfully bring to the surface an issue that Marc and I do not resolve in the paper. We speak of Posner and Wilkinson as advocating for particular judicial dispositions as features of judicial excellence. This terminology leads toward understanding the qualities of good judging in virtue-based terms. But we do not explicitly endorse a virtue-based account as against some other type of account. At other times in the paper, we speak in terms of judicial office or judicial role or judicial duty. We do this less to contrast a virtue approach with a deontological approach than to capture an aspect of judging that both pragmatism and restraint rub up against in various ways--the obligation of law. If the law requires something, the judge should neither be pragmatic nor restrained to the exclusion of the requirements of the law. Neither Posner nor Wilkinson claims otherwise. But too strong an emphasis on sensibility or disposition tends in that direction. One can see this in various ways in the cases that we describe in the second part of our paper.
While an emphasis on appropriate judicial dispositions toward constitutional adjudication stands in some tension with an emphasis on the right way to figure out what the law requires, it is nonetheless helpful to recognize the two as distinct. This enables analysts to discuss the contribution and the limits of each type of guide for judges. And when figuring out the right dispositions for judges in constitutional adjudication, it matters that the particular form of practical reasoning at issue is judicial legal reasoning. Appropriate dispositions toward the kind of practical reasoning engaged in by political and religious activists are not the same as appropriate dispositions toward judicial legal reasoning in constitutional cases.
March 04, 2014
Pragmatism, Dispositions, and Theory: Taking Off from Kevin and Marc
Marc's and Kevin's postings on pragmatism and judicial restraint as dispositions toward judging, rather than directly usable theories, remind me of a parallel argument in Christian social ethics (there probably is one in secular ethics as well). In the early 1980s, Catholic theologian Dennis McCann (DePaul) wrote a book called Christian Realism and Liberation Theology: Practical Theologies in Creative Conflict. In it McCann was appreciative but also critical of the long-dominant (though declining) tradition of Christian realism as exemplified by Reinhold Niebuhr and those following--a tradition that, overlapping with pragmatism, emphasized the complexity and irony involved in many moral/social disputes in a fallen world and the need in many cases to balance conflicting values. McCann concluded that Niebuhrian realism failed to provide more than "disposition" toward social questions. I've always thought that one could draw more from the Christian realist approach than McCann said; but in previous work I've admitted that perhaps the main value of the approach may be to describe and defend a disposition. However, dispositions are important. Good dispositions are virtues, and virtues--the qualities with which we approach intellectual and moral challenges--may be more powerful and determinative than the precise logic of analysis. In an earlier, 1995 law review article on "church-state relations and [Niebuhr's] social ethics," I went through this:
[McCann] argues that after Niebuhr rejected Marxism, he failed to articulate a new “critical social theory” that would guide the choices between conflicting political ideologies; instead, he constructed “not much more than a 'dispositional ethic’ for politicians and social activists.” In other words, Niebuhr beautifully taught activists how to combine vigorous advocacy with deep humility, but left little guidance (other than context-specific judgments) on what actual goals they should seek....
[But] the “dispositional ethic” that Niebuhr sketched for religious and political activists [is] important. Niebuhr vividly taught how to combine vigorous advocacy with deep humility. Achieving that balance is not an easy task in law and politics, but it is one that is crucial. It is especially crucial if, as I have argued, one cannot sidestep the dangers of religious zeal in politics by trying to separate religion strictly from public life. We must look to religious views themselves, as well as secular views, to find reasons to be humble and tolerant even as we engage in political conflict. Humility inculcates the willingness to reach proximate solutions, because we realize the potential for truth in our opponents' perspective and the potential for partiality and complacency in our own. And even when vigor demands that we not compromise, humility inculcates a “sense of pity and forgiveness for those who contend against our truth and oppose our action.”The combination of vigor and humility is too often lacking in debate concerning the issues of the current “culture wars,” including the issue of how to relate religion and politics. On one hand, citizens who are wary of the certainties proclaimed by activists too often despair of reaching any solutions to intractable social problems. On the other hand, activists on both sides of the culture wars too often display little humility. Both sides need internal voices to do for them what Niebuhr did for his own community of political and religious liberals: to reconstruct their basic commitments while working to purge them of false certainties and utopian illusions.
I think that the recent intensification of the culture wars has shown again the relevance of these points.
So back to Marc and Kevin. Is there an analogous line of thought for their project on judging? I.e. that pragmatism and judicial restraint cannot fill in for substantive analysis of the purposes of the Constitution (or more broadly, of our system of constitutional democracy, or less broadly, of a particular constitutional clause or doctrine). But nevertheless pragmatism and judicial restraint--to the extent that they are correct accounts of judicial virtues--can still be vital and central.
What Happened to Justice Frankfurter?
The received wisdom is that, nowithstanding his enormous intellect and brilliance, Justice Frankfurter's overbearing personality in combination with his 'on-the-wrong-side-of-history' position in Minersville v. Gobitis was enough to do him in as an influential voice on the Supreme Court. Gobitis does seem universally reviled; Professor Sherry in this article lists it alongside Plessy v. Ferguson, Buck v. Bell, and some others as among the wrongest of the wrong. Justice Frankfurter has long been associated with judicial restraint in constitutional adjudication, and Gobitis certainly could be classified as a judicially restrained decision. Indeed, it could be taken to support Professor Sherry's thesis--that what we need is more judicial "activitism" and less judicial restraint.
In our article, Kevin and I note how common it is for both Judge Posner and Judge Wilkinson to discuss judicial greatness in constitutional adjudication not by reference to constitutional theory, but instead by considering personalities, styles of thought, dispositions, and character traits. When they talk about judicial excellence, these judges are wont to engage in intellectual portraiture more than abstract theorizing. And we observe that Judge Wilkinson often lists Justice Frankfurter as one of his most admired examples of the "school" (Wilkinson's term--evoking a community of practitioners, such as a school of artists) of judicial restraint--one which Wilkinson claims as his own.
How, then, to explain Justice Frankfurter's widely perceived fall from grace? "The tragedy of Mr. Justice Frankfurter," the historian Melvin Urofsky has written, was that he became "prisoner to an idea--judicial restraint." But if we are right, the tragedy was not Frankfurter's, but judicial restraint's. Frankfurter's error was not in pledging allegiance to an idea, but to the wrong idea. To use Wilkinsonian imagery, from the time of Thayer it was already plain to see that judicial restraint could not bear the cosmic burden laid on it in the face of the coming challenge of legal realism. Judicial restraint was a rearguard defensive action--an apologetic strategy--and its adaptation in the hands of each of its subsequent adherents (Frankfurter, Bickel, and so on) served to illustrate its weakness as a persuasive response to the problematics of twentieth century constitutional adjudication.
March 03, 2014
Judicial pragmatism and judicial restraint as dispositions toward constitutional adjudication rather than constitutional theories
Many insights seem so obvious once you have them that you wonder whether they are insights at all. And some may be so obvious to others that putting them down on paper for oneself or others may be a waste of time. But it seems like many people share a similar confusion to one that Marc and I experienced when we began writing about Judge Posner's judicial pragmatism and Judge Wilkinson's judicial restraint. So we decided to use Part III of our investigation of their writings about (and while engaged in) constitutional adjudication to develop what seemed like an insight to us. This is the claim that judicial pragmatism and judicial restraint are not best understood as constitutional theories to replace something like originalism or Dworkinian moralism, but are instead better understood as dispositions toward constitutional adjudication.
We think it's helpful to make this claim explicitly because both Posner and Wilkinson have pitched their approaches as substitutes for other constitutional theories on offer, and academic critics have responded in kind. But this leads to the judges talking past the scholars, and vice versa. Once one understands judicial pragmatism and judicial restraint as dispositional accounts of the judicial office and judicial excellence in constitutional adjudication, one can offer criticisms that focus directly on the adequacy and depth of their accounts of good judging. Such criticisms are not a replacement for criticisms grounded in constitutional theory; those remain important. But the kinds of criticisms that we make are of a different sort. We argue, for example, that Judge Posner misapprehends Chief Justice Marshall's greatness as a judge when he adopts Holmes's understanding of Marshall as a "loose constructionist." And we contend that Judge Wilkinson is mistaken when he describes the quasi-Thayerian judicial restraint he advocates as representing "mundane and humdrum truths" or a distillation of the values of traditional adjudication. In fact, we contend that Thayerian judicial restraint is the first "cosmic constitutional theory" of the kind that Wilkinson criticizes. Although we do not put it quite this way in the paper (which does not mention Walker Percy), Thayerian restraint was a response to judges having become "Lost in the Cosmos."
March 02, 2014
On the Pain of Discrimination and the Role of Law and Government (Part Two)
Following on my earlier messages to the ReligionLaw list about the nature and pain of discrimination and the necessarily limited role of law in a free society, I attempted in this final message (which I set out below for Mirror of Justice) to sketch out some points of general agreement and narrow in on the remaining points of disagreement.
While I wouldn’t suggest that consensus has been reached on all points [among posters to the ReligionLaw list], I thought I heard increasing agreement on some basic points:
First, when the law declares that basic provision of goods and services may not be denied on the basis of certain classifications, the general application of such a law meets with general approval among members of the list. Thus, to use a couple of generic examples offered now by more than one member of the list, the grocer should not discriminate on race, gender, religion, or sexual orientation in selling groceries and the baker should not bar anyone at the door based on such identity from entering to buy baked goods. To permit the grocer or baker to pick and choose who to serve based on essential identity would be discrimination at its most invidious, the harm experienced by the person who was the subject of such discrimination would be at its most egregious, and the claim of an intrusion into liberty interests at its lowest ebb.
Second, and by contrast, people appear to agree that when a person suffers a hostile reaction to advocacy, even on the most discriminatory of bases, or when a person restricts the goods and services that will be offered to anyone on the basis of that person's personal identity, then law should not intervene. Discrimination in direction or in effect by itself cannot be the basis for unleashing the coercive power of law. Thus, as previously discussed, a pair of Christian evangelists who are the subject of discriminatory taunts on the street should receive no legal redress. And the Jewish baker who closes the shop early on Fridays because the Sabbath is beginning should not be forced to do otherwise.
Into this second category where the law should not intrude, then, presumably would fall such additional examples as the operator of a Jewish deli or a Muslim halal grocery who chooses not to stock pork chops or bacon for religious reasons; the owner of a gay and lesbian bookstore who chooses not to place books about religious “reparative” ministries on bookshelves because he disagrees with that message; or the obstetrician who refuses to perform abortions on philosophical or religious grounds.
Now, and here I return to the point where consensus has not been reached, I would submit that some of the same or similar characteristics or principles that define this second category of free choice also encompass the case that has been highlighted of the wedding photographer who declines to photograph a ceremony with which she disagrees. Similarly, an attorney may choose to represent only plaintiffs who allege they are victims of sexual abuse and simply refuse to represent defendants who are accused of sexual abuse. An advertising agency may refuse to work up a promotional campaign for a Republican politician. A public relations firm may refuse to take on a Catholic archdiocese seeking to counter negative publicity related to priest sexual abuse. A psychologist may specialize in counseling women who have suffered abuse, while choosing not to accept male clients. A couples therapist may focus on gay couples, while not choosing not to work with straight couples.
Now each of these examples could be described as involving “discrimination.” But we have also used another term to describe these choices: Freedom.
What I would argue distinguishes these business choices from the general prohibition on discrimination in goods and services is that the service or good provided is inextricably intertwined with a message or perspective that the provider may or may not wish to endorse. In these examples, the services are being devoted directly or nearly so to the promotion of a message, which thus implicates freedom of thought at its most critical. Moreover, because of the personal nature of these kinds of services, the service-provider necessarily must identify with the client, becoming a partner with the client in directly advancing the client’s goals. The connection between the provider of goods or services here is anything but collateral to the message, ceremony, position, etc.
To use the law to require the service-provider of this distinctive nature to become involuntarily tethered to a viewpoint that he or she does not endorse is simply not compatible with fundamental liberty principles. That we may not agree with those choices, or even find one or another choice repugnant, cannot be the measure of our response, if freedom is have any purchase. Here at least, we should say that the law may proceed no further.
Lawler, Douthat, and Loyola on "Catholic and American" and "The Terms of Our Surrender"
A trio of articles or commentaries worth reading and thinking about:
Over at First Things' First Thoughts, Peter Lawler responds to Patrick Deneen in a post titled "Catholic and American (and Quirky About It)." In response to what he calls Deneen's "real divide" essay on American Catholic thought, Lawler distinguishes himself from other thinkers in what Deneen has described as the Murray/Neuhaus/Weigel school (as compared with the MacIntyre/Schindler school).
In the New York Times, Ross Douthat has an op-ed titled "The Terms of Our Surrender." Douthat sees in the "mendacious and hysterical" coverage of Arizona SB 1062 the ascendancy of the equation of opposition to same-sex marriage with opposition to inter-racial marriage.
Catholic Education Daily has a news item on Loyola (Chicago's) policy on the use of campus facilities for weddings and wedding receptions. Loyola's policy is that only Catholic weddings may be held in the Catholic chapel, and no weddings may be held elsewhere on campus, but there are no religion-based limitations on wedding receptions.
Remembering "the real Bob Casey"
It's hard for me to believe, but we are approaching the fourteenth anniversary of the death of Robert P. Casey, Governor of Pennsylvania, and the last of the great pro-life Democrats on the national scene. I fear that we shall not see his like again. Here is a link to my tribute to the Governor which was published by First Things shortly after he died in 2000.
March 01, 2014
Bigotry, Discrimination, Teaching, and Catholic Thought
A number of my friends here at the Mirror of Justice have recently addressed a variety of issues (e.g., the Arizona RFRA-styled legislative proposal just vetoed by the governor; new articles and editorials in America magazine discussing laws that are “crimes” and the Church’s attitude toward same-sex attraction and sexual activity; religious freedom; the role of government and law in society; etc.) dealing with the pressing questions that provide forums for the presentation of differing views on human sexuality and the legal protection that these views merit or may merit. A subtext pertaining to these issues from a legal perspective is the political idea and ideal of equality and the reality of equality. A further subtext is the role of religion—particularly Catholicism—in these issues and the discussions and debates that surround them.
It is assumed by some participants in the current political and academic debates on these matters concerning human sexuality that any difference in treatment or status between same- and opposite-sex is prima facie unlawful because it is discriminatory. But the notion of discrimination needs to be considered carefully so that it is understood accurately by society in general and by the law in particular. This is where the vocation of teaching and the discipleship based on Catholic thought have a crucial role to play.
The teachings of the Catholic Church condemn discrimination that is unjust (that’s a big modifier that will need more attention somewhere else, perhaps in another posting at this website). Why does the Church use in her teachings this crucial modifier? It would be illogical to condemn all discrimination across the board because human civilization and human nature rely on proper, i.e., just, discrimination. Those of us who are or who have been teachers discriminate in many ways. We discriminate in the evaluation of faculty candidates when we hire some but not others. We discriminate when we make substantive distinctions between and among student papers and final exams. We discriminate when we exercise our role in faculty governance by deciding which proposals before us we accept and which we reject. But these discriminations are not unjust because they are warranted, or should be, by substantive merits or their absence. In spite of some student protests, not all students will receive an A. Despite their aspirations, not all candidates for faculty positions will be offered teaching posts.
Yet, discrimination is not restricted to the world of the academy. Discrimination is exercised legitimately throughout human civilization when people make decisions about what cut of meat they can afford at the super market, or how big of an addition to their home will their budget permit, or how large a contribution, if any, can they make to alma mater. The list of discriminations that are admissible, perhaps even meritorious, goes on and on.
Nonetheless, some participants in the present day disputes concerning human sexuality press the argument that any difference of treatment between same-sex-this and opposite-sex-that is unlawful because some people are being treated differently from others. Therefore, such differing treatment is discriminatory and may very well be based on bigotry.
But this is not so because these claims are untrue.
They are untrue because the objective intellect, not political will and the might that often accompanies the will, comprehending the reality of the nature of the human person, human physiology, and biological differences can demonstrate that there are dispassionate distinctions separating and distinguishing the worlds of same-sex and opposite-sex. It is not bigotry to make this claim. Neither is it religious or other superstition. Rather, it is reality grasped by the objective and impartial intellect that makes and supports the distinction. But in the minds and resulting positions of some, the reasoned distinctions made between same-sex and opposite sex are impermissible because they are, from the outset, “bigoted” or “unlawful” without the need for further comment or justification.
This last point describes a vast element of the political and, therefore, legal world that we inhabit today and the supporting mentalities that faithful Catholics encounter that are forcing a dramatic and perilous change in the law and civilization. Thus, it is the duty of the Catholic teacher who remains true to the faith to point out with reason, with humility, with respect, and with resolve that this that claims about unlawful discrimination based on different treatment between same-sex and opposite-sex are wrong. It may well be that the time for the faithful Catholic teacher to pursue this responsibility is growing short, but the duty remains as long as these overwhelming errors persist. This duty can and should be welcomed where authentic dialogue exists. However, another hallmark of the present age is the attitude that relies largely on the success of one’s position, not because of reasoned argument but because of political clout and little else.
"Bigotry" v. "Sincerely held religious belief"
In the course of the conversations, debates, arguments, etc., about the recently vetoed Arizona RFRA proposal specifically, and exemptions from antidiscrimination laws generally, the questions are sometimes posed (a) whether a particular action reflects or is motivated by "bigotry" or by "sincerely held religious belief" and (b) whether there's really a clear line between the two.
We could say, I suppose that "bigotry" is just the word we attach to motivating premises and beliefs that seem particularly offensive or insufficiently rational or connected with reality. If we say this, then the line separating "bigotry" from "sincerely held religious belief" is not clear at all. Or, we could simply declare that an otherwise "bigoted" (under definition) action will *not* be labelled as "bigoted" if it reflects a certain kind of insufficiently rational belief, i.e., "sincerely held religious belief." But, this would simply be a declaration, an ipse dixit of sorts.
I'm not sure we should invest too much time or energy in trying to distinguish sharply -- for purposes of the typical liberal political community's antidiscrimination laws -- between conduct that is motivated by "sincerely held religious belief" and conduct that is motivated by "bigotry." It seems to me a better approach might be to start with this question: "When, if ever, should we accommodate or tolerate conduct that (i) the political community has decided, for reasons that it thinks sufficient and appropriate, to prohibit and (ii) is motivated by sincerely held religious belief?"
Of course, we could say "never", but I don't think we should (because we are committed, for now, to some form of religious liberty. We could say, "we should accommodate, unless the conduct is motivated by 'bigotry.'" Instead, maybe we should just say "we should tolerate or accommodate otherwise prohibited conduct that is motivated by sincerely held religious belief if it is possible to do so reasonably efficiently and without undermining the policies or values that underlie the prohibition or regulation." The "without undermining" inquiry is hardly cut-and-dried, but I think it could be done without trying to cull through "religious" motivations and separate them from "bigoted" ones. Thoughts?
Paul Caron on faculty scholarship at faith-based law schools
This presentation and paper, by uber-law-blogger Prof. Paul Caron (Pepperdine) looks really interesting: Faculty Scholarship at Faith-Based Law Schools: Long Tails, Moneyball and Rankings in a Time of Crisis. Quoting Paul: "I argue that religious law schools are uniquely positioned to thrive in the midst of the law school crisis because our faith-fueled commitment to our students and to each other empowers us to better define the pathways to success for our schools, our students, and our faculties and equips us to make that journey together."
On the Pain of Discrimination and the Role of Law and Government (Part One)
I’ve been encouraged to post to the Mirror of Justice some more of my posts to the ReligionLaw list, this time in the ongoing debate among legal scholars about the proper balance (if any) between enforcing statutes prohibiting discrimination based on sexual orientation (and other bases) and protecting religious liberty. Some have argued that the law is properly used to protect everyone against the pain of discrimination, even when goods and services remain readily available from others and thus there is no concrete harm being addressed, and further that no religious liberty exemptions should be permitted. Below is the beginning of my response:
In reading several messages poignantly describing the pain of suffering discrimination, I was reminded of something that I observed on the streets of a major American city to which I was traveling. On a major downtown pedestrian thoroughfare, two young people, looking to be in their early twenties, were handing out flyers and trying to engage passers-by in conversation. Their t-shirts, leaflets, and spoken words readily identified them as evangelical Christians preaching the Gospel. Their persistence in the face of a rather disdainful audience, as well as the tone and message, confirmed that they were speaking from the heart and acting in furtherance of what they understood to be a genuine calling to share good news with others.
The response was anything but receptive; indeed, it was, no two ways around it, frequently hostile and, yes, bigoted. While most of those walking by simply ignored the two or gave them a cold stare as they passed, several made derogatory remarks, laughed or jeered loudly, or even told them to “[epithet deleted] off.” No one physically accosted the two, and the comments did not provoke any violence, so I don’t think it could be called disorderly conduct. But the targeted response was despicable in manner.
The two evangelists never responded in kind, instead saying “God bless you” or “Jesus loves you” to each person. But it was plain that the hostile treatment left its psychological mark. The young woman, who I am guessing was the veteran at street ministry, seemed less impacted. But the young man was shaken, as I could tell from his mannerisms, what looked to be tears in his eyes, and the quaver that appeared in his voice after he received a particularly vituperative comment.
Now what these two evangelical Christians experienced was plainly “discrimination.” And it was blatant and invidious discrimination. The remarks were not merely negative and disrespectful, but many were hateful and cruel. And the basis for the discrimination plainly was their religious identity and message. In the words of more than one poster to this list over the past day, these two were suffering an injury to their dignity, the pain of rejection, and the shame of stigma based on their identity.
Despite the undeniable fact that these two were the victims of discriminatory treatment and that they plainly felt the sting of that discrimination, I am guessing that all or most on this list will agree with me that it would be inappropriate to use the power of government to prevent such unfortunate behavior in the future or to pass a law that would compel those who pass by to treat evangelists with respect. And I think that choice to refrain from use of government and law is correct for at least two reasons.
First, a legally binding directive to treat evangelists – or for that matter others who present a message – with respect, or instead a government regulation that induces such respect at the cost of some type of sanction or withheld benefit, would be difficult to separate from an improper government endorsement of the message at issue. At the very least, legal action would put the heavy thumb of the government on the side of refraining from expressing opposition or indifference to a value-laden message.
But, second, it simply is not the proper role of government to enforce standards of courtesy or to wield legal power (as contrasted with appropriate exercise of persuasion) to shape human interactions. I definitely assert a moral right to be treated with dignity, but I do not have a legal right in a free society to demand that other private citizens extend such courtesy to me or even refrain from being discourteous. (By statute, of course, I do have the right to object to even private discrimination on certain grounds when it denies me the necessary tools for educational and economic opportunity. That’s something on which I’ll comment more later – but this post is already too long. My specific point here is that the real pain of discrimination alone, unaccompanied by something concrete like an economic deprivation, is like other failures in human behavior that are not properly the subject of government and where the imprudent use of law often transgresses the fundamental rights of some while attempting to address the grievances of others.)
Instead, it belongs to all of us, with personal commitment, through investment of time and talents, by telling our stories, and in how we live our lives, to enhance human dignity. We should resist the temptation to delegate that responsibility to government, through its use of power or its imposition of laws and liabilities. In a free society, we do not empower the government to shape our souls. That remains our job as the people.
Movsesian on the Rise of the Nones
My colleague, Mark Movsesian, has a very interesting paper on the growing importance of the "Nones"--those who claim no religious affiliation at all but by and large are neither atheists nor agnostics. Rather, the Nones reject institutional religious belief. As Mark puts it, "A better term for them might be religious 'Independents,' or the familiar 'spiritual but not religious.'" The paper considers some of the legal ramifications of "none-ism," including the relationship between group status and legal protection. Here's the abstract.
The most important recent development in American religion is the dramatic increase in the number of people who claim no religious affiliation — the rise of the Nones. In this Working Paper, I discuss the social factors that explain the rise of the Nones--demography, politics, family, technology, a distrust of institutions generally--and explain what this development might mean for the definition of religion in American law. I focus on a recent federal appeals court case involving a self-styled spiritual adviser, “Psychic Sophie,” who claimed that following her “inner flow” constituted a religion meriting constitutional and statutory protection. I argue that the case is a close one. Protecting Nones as a religion would promote the important goals of state religious neutrality and personal autonomy. On the other hand, religion has always been understood in terms of community. Indeed, as Tocqueville saw, it is precisely religion’s communal aspect that makes it so important to liberal democracy. Granting Nones the status of a religion would fail to capture this important social benefit.
February 28, 2014
How an ancient Greek awakened an undergrad from his dogmatic slumbers
Recently Cornel West and I visited Swarthmore College, where I received my undergraduate eduction, for a day of conversations on the theme "The Bond of Truth-Seeking." Following our visit, I was interviewed by Victor Gomes, a student at the College, for the campus newspaper The Phoenix. The interview has now been published under the title "Swarthmore at Its Best."
In case the interview might be of some interest to MoJ readers, here are some excerpts, followed by a link to the complete interview. Victor began by asking about my backround and beliefs when I arrived at the college in the mid-1970s, and how they changed. Here are some bits of my reply:
. . . . Like my peers, I wanted to be sophisticated and enlightened—and to be regarded by others as sophisticated and enlightened. So a lot of what I believed simply as a matter of tribal loyalty was reinforced by a tendency to adopt views that conformed to the beliefs of what the late Irving Kristol dubbed “the knowledge class”—professors, elite journalists, and the like. With the exception of abortion, which I had thought about a lot, I hadn’t really thought myself into the positions I held. Rather, I had taken the short cut: I was content to believe what I thought sophisticated and enlightened people believed, or at least were supposed to believe. I simply, and rather unselfconsciously, assumed that an approach of that sort would reliably place me on the correct side of the issues. And, of course, it would give me access to a world I wanted to enter more fully—the elite world of important people who really counted and made a difference. If I got the right credentials, beginning with a Swarthmore degree, and held the right views, I could be someone who mattered. It was then, as it is now, a common motivation for students at elite colleges and universities.
I wasn’t completely blind, though, to problems on the left. I saw cases—they could scarcely be missed—of self-indulgence masquerading as principle or courageous defiance of social norms. And I was not entirely comfortable with the harder leftward turn being taken by the liberal movement and the Democratic Party in the 1970s, especially on what we now call “social issues.” The movement and the Party were becoming quite unlike what they were when their leaders were people like Roosevelt, Adlai Stevenson, and Hubert Humphrey. Still, I was a partisan Democrat and a loyal center-left liberal. I attended the 1976 Democratic National Convention as an alternate delegate and was happy with the nomination of the moderate Jimmy Carter and the liberal Walter Mondale as the Party’s national ticket. But even then, I was in the midst of a major rethinking of, well, everything. The triggering event was one I mentioned at the Collection with Professor West. I had encountered Plato’s dialogue Gorgias in a political theory course taught by Professor Sharpe. It made me realize that I hadn’t actually been thinking much at all. I had views, but I was scarcely entitled to them. I was a skilled debater, but skilled in talking for victory, not for truth. I regarded my interlocutors, especially those with whom I had partisan or ideological differences, as adversaries, not as partners in the quest for knowledge and wisdom. My arguments did not reflect any actual thinking that had gotten me to where I stood on this issue or that; rather, they were offered as justifications for positions I held for all sorts of questionable reasons: tribal loyalty, personal preference, applause, the wish to be and be seen to be sophisticated, the desire to fit in with others at the College and in elite sectors of the culture generally.
My views did not change overnight—though my attitude did. But they did change. At least they changed on some pretty important issues. By 1980, five or so years after my encounter with Plato, people to my left started describing me as a “conservative.” It took me another decade to accept the label—and even then I accepted it only grudgingly. Tribal loyalties (and labels) are even less easily abandoned than they are acknowledged. In some cases, what changed was not my view of the ends that ought to be pursued, but rather the best means for pursuing them. Observing, first with concern and then with anxiety, what was happening in my native Appalachia, I grew skeptical of the general approach to fighting poverty that had traditionally been favored by the Democratic Party. It became clear to me that what were needed were fewer direct government anti-poverty initiatives and greater efforts to support and rebuild institutions of civil society. I saw happening in the hills and hollows of central and southern West Virginia and eastern Kentucky what had been happening in places like inner city Detroit. And well-intentioned policies seemed to be making the situations worse rather than better. Trying honestly and dispassionately to think my way through things, I found myself increasingly impressed by what I was reading by “conservative” writers such as Irving Kristol, Daniel Patrick Moynihan (who, when he wasn’t holding a pen in his hand, remained a liberal Democrat), and James Q. Wilson. To my surprise, I found greater insight and wisdom in The Public Interest than in the New York Times or Dissent. It was a bit unnerving—since I did not know where this train was taking me—but also exhilarating. I was being persuaded by arguments, and I was beginning to think critically and for myself. The desire to “be sophisticated” and to “fit in” with my peers and other “enlightened” people no longer mattered to me. I was free.
On reflection, my religious beliefs strengthened and became both more orthodox and more ecumenical. That might seem paradoxical from a liberal secularist viewpoint, but won’t seem at all odd to people who know what the Catholic Church actually teaches in, for example, the documents on religious liberty, ecumenism, and the world’s religions of the Second Vatican Council. My pro-life convictions also strengthened, as my understanding of the arguments on competing sides deepened, and I found myself embracing a more conservative set of ideas on other moral and social issues, as well. Thinking about abortion and infanticide (Michael Tooley had published his famous article linking and defending the two practices just before I arrived at Swarthmore), I eventually came also to reject euthanasia and the death penalty. The last of these positions did not endear me to my new conservative allies, but I had long since stopped caring about anything other than whether the weight of reason and argument supported a position or failed to support it. The idea that one would hold a belief, or not consider changing a belief, out of partisan or tribal loyalty no longer had purchase with me. . . .
Posted by Robert George on February 28, 2014 at 06:50 PM | Permalink
SCOTUSblog symposium piece on the Hobby Lobby case
My contribution (and it's just one of a bunch) to the SCOTUSblog symposium on the upcoming Hobby Lobby case is here. Here's a bit:
The Religious Freedom Restoration Act does not reflect a mistaken or naïve view that religiously motivated conduct is always praiseworthy or that religious actors always prioritize the common good. Sometimes, generally applicable laws need to remain generally applicable. Sometimes, fair and practicable accommodations are not possible. Sometimes, parties invoking RFRA will and should lose. But, sometimes they should win – whether they are institutions or individuals and whether they are engaged in worship, social service, or art-supplies sales. The Act says, for all of us, that religious freedom matters, that it matters to policy winners and losers alike, and that if we can accommodate religious believers’ practices and objections, then we should.
A New Stance on Homosexuality?
That question was in the subject line of an e-mail I received this afternoon from the Jesuit magazine America. The reference, it turned out, was to an article, in the new issue, by John Langan, S.J., who is the Joseph Cardinal Bernardin Professor of Catholic Social Thought at Georgetown University. The article--which is titled See the Person: Understanding Pope Francis' Statements on Homosexuality--will be of much interest to many MOJ readers (and bloggers). As Larry Solum says: Highly Recommended! The article is available here.
A related piece in the same issue--an editorial, titled When the Law is the Crime--is here, arguing vigorously that "supporters of traditional marriage must denounce unjust discrimination against homosexuals." An excerpt:
"It is especially disturbing that such legislation is immensely popular in predominately Christian countries like Uganda, where 40 percent of the population is Roman Catholic and the Catholic bishops have sent mixed signals about the legislation. When the bill was first considered in 2009, Archbishop Cyprian Lwanga of Kampala, speaking on behalf of the Catholic bishops’ conference, said it was 'at odds with the core values' of Christianity. When the bill was reintroduced in 2012, however, the Uganda Joint Christian Council, which includes Catholic, Anglican and Orthodox bishops, expressed support for the bill. Archbishop Ignatius Kaigama of Jos, Nigeria, meanwhile, has praised President Goodluck Jonathan for his 'courageous and wise decision' to sign the new law in that country."
February 27, 2014
The veto, coverage, and misrepresentation of AZ 1062
Gov. Brewer has vetoed what the Wall Street Journal calls a "service refusal" bill (an earlier WSJ headline had said "religious liberty"; the New York Daily News refers to it as a "controversial anti-gay" bill). In my view -- and, frankly, whatever the ultimate merits of the bill (which would have modified the state's RFRA-type bill, which is modeled on the federal RFRA, which was strongly supported by Sen. Kennedy and signed into law by Pres. Clinton) -- it is depressing to note the extent to which the proposal was mischaracterized and misrepresented, in many cases by commentators who should have known, and I suspect did know, better.
Here is a letter, authored by Prof. Douglas Laycock and signed by a number of other law-and-religion scholars (including Tom Berg, Doug Sisk, and me), which explains what the law would have, and would not have, done. As the letter points out, the bill would have "amend[ed] the Arizona RFRA to address two ambiguities that have been the subject of litigation under other RFRAs." Later:
SB1062 does not say that businesses can discriminate for religious
reasons. It says that business people can assert a claim or defense under RFRA, in any kind
of case (discrimination cases are not even mentioned, although they would be included),
that they have the burden of proving a substantial burden on a sincere religious practice,
that the government or the person suing them has the burden of proof on compelling
government interest, and that the state courts in Arizona make the final decision.
Again, the bill has been vetoed, no doubt in response to the outcry -- itself driven largely by the mischaracterizations of the bill -- from business groups (and the N.F.L.). The debate about religious accommodations is changing strikingly.
"Love and Intellectual Property" (from Pepperdine Conference)
Pepperdine Law School put on a wonderful conference a few weeks ago on "Love and the Law" (i.e. Christian love or agape). There were many terrific presentations, including from MOJers Mike Moreland, Michael Scaperlanda, Lucia Silecchia, and Rob Vischer (and Patrick Brennan would have been there too but for the terrible weather in the East). My own presentation was on "Love and Intellectual Property" (here is a very slightly expanded version of the text of the short remarks; it should also appear soon on the webpage of conference papers). I briefly explored the relation between creativity as a gift, gratitude for the gift, and appropriate limits on intellectual property rights in the creation. Here's a one-paragraph taste:
So the first thing Christian love might add is an additional, and distinctive, motivation to create and share. Intellectual creation may reflect eros—pursuing the beautiful or true—but it is also agape, sharing a gift. But if gift and gratitude issue in love, this inspires one not simply to create—which might still be consistent with restricting access solely to maximize profit. Love should also inspire the creator to share in ways such that all can benefit. In short, love has the potential to unite the motivation for creation and an obligation to benefit others through it.
February 26, 2014
Inviting Applications for the Libertas Project Summer Workshops
The Libertas Project at Villanova University School of Law is seeking applications for participation in its 2014 summer workshops on religious and economic freedom. The project will seek to bring together concerns about religious freedom and economic freedom in a framework that situates both topics amid a larger conversation about freedom, law, and virtue. The Libertas Project aspires to broaden the academic and public appreciation for religious freedom as a human good, while also bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society. A more detailed description of the project’s inspiration and goals is below. The Libertas Project is made possible through the support of a grant from the John Templeton Foundation.
To address these issues of religious and economic freedom, the Libertas Project will host a series of summer workshops at Villanova University School of Law. Each workshop will be comprised of approximately 20 participants drawn primarily from law but also welcoming scholars from related fields (philosophy, political science, religion, business, and economics, for example) as well as judges, policymakers, and journalists. The workshops will be structured around a set of common readings on each topic with group discussions, break-out sessions, and meals in order to foster scholarly networks and collaborative projects among the participants.
The dates for the 2014 summer workshops are July 7-9 on economic freedom and July 14-16 on religious freedom. Participants in the workshops will each receive an honorarium of $1500.
The workshop moderators will be Thomas Smith (Villanova University) and Mary Hirschfeld (Villanova University) on economic freedom, and Marc DeGirolami (St. John’s University) and Zachary Calo (Valparaiso University) on religious freedom.
The workshops will take place at Villanova University School of Law. Villanova is located 12 miles west of Philadelphia, the fifth-largest city in the United States and the second-largest city on the East Coast. The campus is situated on Philadelphia’s suburban Main Line, and Villanova is easily accessible by train, plane, car, or regional public transportation.
Due to limited travel funds, participants are asked to obtain travel funding from their home institutions, but travel scholarships are also available.
To apply, please submit a brief statement of interest (and specifying whether you are interested in the workshop on economic freedom or religious freedom) with a current c.v. to the project leader, Michael Moreland, Vice Dean and Professor of Law at Villanova University School of Law (Moreland@law.villanova.edu) by April 30, 2014.
The Libertas Project addresses two topics related to freedom in the context of law and religion in American public life: religious freedom and economic freedom.
Religious freedom and economic freedom, though rarely treated together, illustrate both some of the shortcomings and the possibilities of American intellectual life, most especially in American law and legal scholarship. One of the challenges faced in American legal scholarship and political theory on religious freedom is the reduction of religious freedom to constitutional law, with little engagement with theological arguments or empirical research on religion in American public life. The leading casebooks and materials on law and religion – even those most sympathetic to religious views – often contain little engagement with theological sources. The American legal discourse on religious freedom is dominated by an understanding shaped by the constitutional framers and then worked out in U.S. Supreme Court doctrine. While important, such a focus omits what is often genuinely important about religious freedom and why it is worthy of constitutional protection in the first place. In addition to understanding the constitutional tradition, lawyers and policymakers also need to understand religious questions as they arise across theological traditions as well as in the history of political thought and practice.
At the same time, public discourse about economic freedom tends to avoid engagement with religion, resulting in an unnecessarily cramped view of the possibilities for mutual illumination between economic and religious aspirations. In some contemporary schools of thought, human beings are understood solely in terms of narrow economic motives. But if religion can be understood as a school for the cultivation of right desire for the benefit of individuals and the common good, putting religious traditions in conversation with economic theory and practice is critical to the effort to raise the most important questions about the meaning and purpose of economic activity: How does the cultivation of an entrepreneurial spirit liberate human capital for human prosperity in a good society? How does such a society manage risk and reward? How are economic motivations better understood when we place them in theological and social contexts? What is the relationship of the entrepreneurial spirit to the meaning of justice and equality? What resources might religious traditions bring to bear on the meaning of economic freedom?
The Libertas Project seeks to bring together legal, theological, and philosophical approaches in search of innovative answers to difficult legal and policy questions about human freedom, both economic and religious. With law students, legal scholars, and legal practitioners as one of the primary audiences, the insights produced by the project will inspire in current and future lawyers and policymakers a renewed commitment to both moral character development and free markets. The combination of economic freedom and religious freedom promises a society of responsible persons working toward the common good. In sum, the Libertas Project seeks to foster a greater understanding of the ways religious and economic freedom can bring about the development of character that advances the prosperity and health of the good society.
February 25, 2014
"But in the end the White House decided not to move my nomination forward. There were two reasons. First, taxes. In 2009 and 2010, the years of my divorce, I filed my taxes late — four weeks and 10 days, respectively. Second, I was not willing to commit to never criticizing the administration, nor to restricting my publishing agenda to topics that were unlikely to be controversial. There is just no point trying to be a public intellectual if you can’t speak your mind. This requirement was conveyed and discussed through phone calls; I have no written record to prove it. But that was how it went."
I compare this with my own experience. I was appointed to the U.S. Commission on Civil Rights by the first President Bush and to the President's Council on Bioethics by the second President Bush. No one in either administration ever even came close to suggesting that I "commit to never criticize the administration." Had such a thing been suggested, I would have refused to make such a commitment, just as Danielle did. I'm proud of her for setting an example of integrity.
But I cannot help but ask: What is with this administration??? Why this fear of criticism? Why this paranoia? And what about the people who are serving as its appointees on the NEH and other boards? Did they agree not to criticize the administration? If so, and if they are professors, I believe their deans, provosts, or presidents---or at least their campus newspapers---should ask them whether they agreed to muzzle themselves as a condition for their appointments. Such self-censorship by an academic on the NEH board or on a federal commission would be disgraceful. But if it was a condition of Danielle Allen's appointment, then it was likely a condition of the appointment of others, as well, don't you suppose? Shame on those who accepted the conditions.
"It profits a man nothing to give his soul for the entire world. But for Wales?"
February 24, 2014
Human Rights in Putin's Russia
I have an op ed piece in today's Philadelphia Inquirer on violations of religious freedom and other human rights in Vladimir Putin's Russia.
My analysis is based largely on what I've learned about Putin's actions while I've been serving on the U.S. Commission on International Religious Freedom. These thoughts are, however, my own and do not reflect the views or positions of the Commission.
"In 2012, after Putin's return to the presidency, he oversaw a further campaign against freedom. He supported and signed laws raising fines against protesters one hundred fold; fining or jailing foreign-funded NGO leaders who refused to stigmatize themselves as "foreign agents"; and broadening the definition of high treason, potentially making participation in international organizations punishable by up to 20 years in jail."
"In July, Putin signed a blasphemy law imposing fines and imprisonment for "disrespect" or "insult" of religious beliefs. He also approved legislation barring public advocacy of "alternative lifestyles." Yes, other countries are creating a hostile climate for freedom of expression of traditional moral views about sexuality and marriage - and this deserves condemnation - but two wrongs don't make a right. Societies must protect every individual's right (and the right of every religious or advocacy group) peacefully to express their beliefs about sex and marriage and other issues."
"Behind these restrictions is a premise - that respect for human rights threatens Russia's cultural unity or national security. But when the government dishonors fundamental rights, there can be no unity or security, only more chaos and division, and, eventually, violence and terror."
"When it comes to national security, Putin understands the need to fight not just terrorists, but also their ideology. But the Russian strongman needs to learn that the way to defeat bad ideas is with good ones in a public square that admits the peaceful expression of competing ideas. If Russia is to prevail, it must protect basic civil liberties - from freedom of religion or belief to expression, association, and assembly. It must create and maintain a free marketplace of ideas."
The full op ed piece is available here:
Posted by Robert George on February 24, 2014 at 04:49 PM | Permalink
"Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory"
For the last couple of years, Kevin Walsh and I have been working on an article about judicial critique of constitutional theory and the separation between constitutional theory and constitutional adjudication. Our new piece is called Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory, and we hope to have some further discussion about it in the coming days and weeks. Here is the abstract:
Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own?
This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.
February 23, 2014
Saletan on "After-birth Abortion"
Slate writer William Saletan is, by a considerable margin, the sharpest and best informed bioethics journalist on the liberal side of the spectrum. He fully supports abortion, of course. But he would like to be able to oppose what he describes as "the pro-choice position on infanticide." Here, in a piece titled "After-birth Abortion: The Pro-Choice Case for Infanticide," Saletan is wrestling with himself on the issue . . . and losing. He says that the academic left's supporting infanticide is a "crazy" idea. The trouble is, given his own pro-abortion premises, he can't quite come up with a decent argument against it. He would like to believe that "something profound changes at birth." But, as he quotes a pro-choice critic of that idea saying, "there is nothing magical about passing through the birth canal."
Truer words were never spoken. There is nothing magical about passing through the birth canal. So unfortunately for people like Mr. Saletan, you can't have it both ways. Which side are you on, boys? Which side are you on?
Posted by Robert George on February 23, 2014 at 08:44 AM | Permalink