Friday, July 22, 2016
My friend Matthew Franck has a depressingly timely piece over at Public Discourse, in which he maps out his thinking regarding the question "what to do with my vote in November, given the two awful major-party candidates?" (As I've said here at MOJ before, both candidates are awful -- for various and varying reasons -- and one of many reasons each is awful is that each has the effect of inducing members of the opponent's political party to rationalize or normalize or minimize their own candidate's awfulness.)
I agree with much of what Matt writes. I'm not sure about this, though:
[M]y conscience is more important to me than the outcome of this presidential election. I cannot in good conscience vote for either Clinton or Trump. What matters for me is that I cannot bring myself to intend, to will the victory of either of these ludicrously unacceptable presidential candidates. And that is what a vote for one of them would be—an act of willing that Clinton or Trump be president, carry out her or his stated policy aims, and bring his or her fundamentally bad character to the highest office in the land.
My hesitation is prompted, specifically, by the suggestion that voting for candidate X is "an act of willing that [candidate X] . . . carry out her or his stated policy aims[.]" This seems wrong . . . or at least not necessarily true. One could reasonably think (and, to be clear, I'm not saying that this is what I think) something like this: "Look, candidate X has said all kinds of stupid and offensive things and also proposed stupid, dangerous, and immoral policies. But, it is not the case that, if candidate X were elected, those policies would become operative because Congress, the courts, the press, the bureaucrats, candidate X's laziness and ignorance, etc., would prevent or obstruct them, or at least most of them. Candidate Y, on the other hand, is smart and ideologically motivated, and would enjoy the support of the press and other opinion makers, and so would very likely be able to make operative a number of candidate Y's stupid, dangerous, and immoral policies. So, I prefer candidate X, not because I intend that candidate X 'carry out his or her stated policy aims' but because I intend to do what I can to prevent candidate Y from carrying out his or her policy aims."
This is different, I think, from the usual "lesser of two evils" argument, because it is focusing more on the "state of affairs that is likely to come to pass as a result of the election of candidate X or Y" than on the merits of X and Y's character or proposals.
A wonderful story about the Alliance for Catholic Education and Vocations . . . in the New York Times!
Simply to say a piece is "by Steve Smith" is to recommend it. Check out this short piece, from a few weeks ago, at the Cornerstone blog, called "Obergefell and the Reconstituting of American Community." It ends with this:
The Christian legacy is manifest as well in the American approach to religious freedom, with its recognition that there are things we owe to Caesar and other things we owe to God. Over the latter category, Madison famously reasoned, civil society and government simply have no “cognizance” —no jurisdiction. This understanding has been central not only to religious freedom but, more generally, to our conception of our political community as (to quote Lincoln, and the Pledge of Allegiance) “one nation under God.” But that conception is today effectively renounced, even by many proponents of religious accommodation, and most vehemently by the opponents of such accommodation.
In sum, modern developments in the areas both of sexuality and of religious freedom are connected in a sustained campaign to reverse the fourth century transformation—to reconstitute the community by rolling back the Christian or biblical legacy that has been central to the American political tradition. “Progressivism” is in that sense profoundly reactionary. On its face, Obergefell was about marriage, but at a deeper level, given the cultural importance of marriage, the decision was a major symbolic victory for that reactionary campaign.
And yet such transformations are not accomplished overnight, and surely not at the command of morally and intellectually insubstantial figures like the author of Obergefell. So we can expect the conflicts to persist for a long time to come.
Thursday, July 21, 2016
Should we change how we elect our President? To: James Hillhouse From: Your Obedt. Servt, J Marshall
In 1808, Senator James Hillhouse proposed a constitutional amendment to change how we elect our President.
Worried about the effect of party spirit as filtered through presidential elections, Hillhouse proposed picking the President by lot from the class of Senators who were finishing their terms. As explained by Richard Hansen, "Every year the retiring senators would meet and, after being blindfolded, each would draw a ball from a box. The senator drawing the colored ball would be President for the ensuing year."
Hillhouse's proposal went nowhere. He tried to revive it in 1830, thinking that experience with Andrew Jackson may have led people to realize the wisdom of his proposal.
He was mostly wrong.
But John Marshall was among those who saw some value in it, even while recognizing it would go nowhere.
Here's Marshall's 1830 letter to Hillhouse (emphases added). Worth reading now as an example of Marshall's judgment ... including his self-awareness that "[a]ge is perhaps unreasonably timid."
(N.B. Hillhouse was a member of the same military unit as Benedict Arnold and Your Obedt. Servt, A. Burr.)
* * *
July 21, 2016 | Permalink
This is the question my CUA colleague (and longtime friend of MOJ), Lucia Silecchia, endeavors to answer in her recent compelling essay in the Seattle Journal of Environmental Law. Professor Silecchia recognizes the value of Laudato Si beyond the constraints of a narrow reading which limits it to an environmental ethics papal letter. She invites us to glean so much more from it by describing the encyclical as:
an invitation for attorneys to reflect anew on their obligations toward each other, to the clients who entrust them with so many things, to the ideals of justice that profession and promise bind them to uphold, and to the passion for what is right and good that drew them to a common vocation a few, or many, years ago.
Capitalizing on Pope Francis's theme of stewardship, Professor Silecchia teases out from this document ten important "rules" for attorneys categorized under the dual concepts of Stewardship of Clients and Stewardship of Justice.
The notion of the law as a vocation is not novel, but Professor Silecchia injects into that idea a modern and contemporary framework well worth considering. This piece deserves a read and presents us with another excellent addition to her impactful body of work addressing issues of morality, ethics, and spirituality that face law students and young attorneys today. (See here, here, and here for a small sampling.)
July 21, 2016 | Permalink
Speaking of Justice Scalia, I have a short piece over at Liberty Law on a piece of his that (I think) has received almost no commentary, with the exception of a very good essay by Adam White, on "Teaching About the Law." Here's the beginning:
There is not very much written by Justice Antonin Scalia that has gone largely unnoticed. But thanks to Adam White (and this fine article of his), I recently read this obscure 1987 essay by the late Justice: “Teaching About the Law” in the Christian Legal Society Quarterly. As we are just over a month away from the beginning of the law school year, it is a propitious moment to share its ideas.The principal question Scalia addresses is this: what ought a law professor who was so inclined teach law students about the Christian attitude toward the secular law? But the answers Scalia offers are of interest because of what they say to, and how they challenge, both the prevailing progressive and libertarian pedagogical frameworks that respectively structure much of law teaching.
Scalia’s first answer is that Christians have a moral obligation to obey the secular law. Drawing from Paul’s Letter to the Romans, Scalia writes that “the first and most important Christian truth to be taught about the law” is that “those knaves and fools whom we voted against, and who succeeded in hoodwinking a majority of the electorate, will enact and promulgate laws and directives which, unless they contravene moral precepts, divine law enjoins us to obey.”
One feature of this answer fairly aligns with the libertarian view of law and politics: for the Christian, good government may be limited government, imperfect government, and perpetually monitored and checked government. But another feature of it is in some tension with the libertarian position: for good government is, in fact, good; so good that it has a moral claim to our obedience.
I've been revisiting some of Justice Scalia's predictions recently. This conclusion to his dissent in United States v. Virginia makes for an interesting juxtaposition with other goings on in American public life today.
In an odd sort of way, it is precisely VMI's attachment to such old fashioned concepts as manly "honor" that has made it, and the system it represents, the target of those who today succeed in abolishing public single sex education. The record contains a booklet that all first year VMI students (the so called "rats") were required to keep in their possession at all times. Near the end there appears the following period piece, entitled "The Code of a Gentleman":
"Without a strict observance of the fundamental Code of Honor, no man, no matter how `polished,' can be considered a gentleman. The honor of a gentleman demands the inviolability of his word, and the incorruptibility of his principles. He is the descendant of the knight, the crusader; he is the defender of the defenseless and the champion of justice . . . or he is not a Gentleman.
A Gentleman . . .
Does not discuss his family affairs in public or with acquaintances.
Does not speak more than casually about his girl friend.
Does not go to a lady's house if he is affected by alcohol. He is temperate in the use of alcohol.
Does not lose his temper; nor exhibit anger, fear, hate, embarrassment, ardor or hilarity in public.
Does not hail a lady from a club window.
A gentleman never discusses the merits or demerits of a lady.
Does not mention names exactly as he avoids the mention of what things cost.
Does not borrow money from a friend, except in dire need. Money borrowed is a debt of honor, and must be repaid as promptly as possible. Debts incurred by a deceased parent, brother, sister or grown child are assumed by honorable men as a debt of honor.
Does not display his wealth, money or possessions.
Does not put his manners on and off, whether in the club or in a ballroom. He treats people with courtesy, no matter what their social position may be.
Does not slap strangers on the back nor so much as lay a finger on a lady.
Does not `lick the boots of those above' nor `kick the face of those below him on the social ladder.'
Does not take advantage of another's helplessness or ignorance and assumes that no gentleman will take advantage of him.
A Gentleman respects the reserves of others, but demands that others respect those which are his.
A Gentleman can become what he wills to be. . ."
I do not know whether the men of VMI lived by this Code; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.
Wednesday, July 20, 2016
A few days ago, Christine Horner posted an appeal to Pope Francis on Huffington Post (a site that no doubt the Holy Father has bookmarked on his computer), calling for "an end to the religious ritual of the declaration of unworthiness" during Mass. She's talking about the Centurion's refrain of “Lord, I am not worthy to have you enter under my roof...” She argues that "dialogue and constructs that perpetuate “I am not worthy” are the root of all evil behavior. It is divisiveness personified."
My colleague at St. Thomas, Deborah Savage from the Seminary/School of Divinity, has written a powerful response, published in Notre Dame's Church Life Journal. She argues, among other things:
The cause of violence in our culture is not the call to admit my weakness, my uncertainties, my mistakes. The cause of violence in our culture is the refusal to accept the reality of sin and to recognize that, in that regard, we are all the same: in need of forgiveness and compassion. The cause of violence in our culture is our inability to see the humanity of another and to love them—to will their good—even if we think they might be flawed.
Deborah's essay contains a lot to chew on for these troubled times.
Sometimes people wonder why I'm so interested in John Marshall. The short answer is that I have learned a lot about American self-government from studying him and think I still have much to learn in that way. Here's Marshall in his Life of Washington, writing on party politics in the 1790s:
In popular governments, the resentments, the suspicions, and the disgusts, produced in the legislature by warm debate, and the chagrin of defeat; by the desire of gaining, or the fear of losing power; and which are created by personal views among the leaders of parties, will infallibly extend to the body of the nation. Not only will those causes of action be urged which really operate on the minds of intelligent men, but every instrument will be seized which can effect the purpose, and the passions will be inflamed by whatever may serve to irritate them. Among the multiplied evils generated by faction, it is perhaps not the least, that it has a tendency to abolish all distinction between virtue and vice, and to prostrate those barriers which the wise and good have erected for the protection of morals, and which are defended solely by opinion. The victory of the party becomes the great object, and, too often, every thing is deemed right or wrong as it tends to promote or impede it. The attainment of the end is considered as the supreme good, and the detestable doctrine is adopted that the end will justify the means. The mind, habituated to the extenuation of acts of moral turpitude, becomes gradually contaminated, and loses much of its horror for vice, and of its respect for virtue.
Thursday, July 14, 2016
A few years ago, the Program on Church, State & Society at Notre Dame Law School hosted a day-long roundtable conversation on Prof. Nicholas Wolterstorff's then-pretty-new short book on political theology, The Mighty and the Almighty. It was really engaging, and brought together a great group of historians, theologians, philosophers, and prawfs. Each participant wrote up a short reaction/reflection paper -- a kind of "admission ticket" -- and now (finally?) they are all out in print. Here, in Vol. 4 of the Journal of Analytic Theology are papers by Marc DeGirolami, Chris Eberle, Kevin Vallier, Paul Weithman, and Terence Cuneo (and a response by Nick). And here, in the Journal of Law and Religion, are the contributions of Robert Audi, Jonathan Chaplin, Dana Dillon, Brad Gregory, John Inazu, Anna Bonta Moreland, Michael Moreland, Mark Noll, and Gladden Pappin. The book, and the tickets, are -- like the man says -- "highly recommended"!
Wednesday, July 13, 2016
My friend and former student, Matt Emerson (whose faith-and-education-related writing MOJ readers have probably encountered online before) has published a book, Why Faith? A Journey of Discovery, that I am pleased to recommend . . . especially to those (of us) with teenagers!
Why Faith?: A Journey of Discovery for the Modern Pilgrim tries to help men and women, particularly young adults formed by the modern world, work through some of the big questions and topics in faith that in the author's experience are especially pressing. It tries to meet someone in the midst of his or her confusions and struggles, rather than presupposing deep theological interest or knowledge. It addresses some specific theological matters (e.g., "How do I know God's will?") but it also addresses matters that are more philosophical or preliminary, for example: Why should I have faith at all? What is the basis for entrusting ourselves to something we cannot verify with certainty? Highlights: * It focuses on questions and the doubts of modern believers * It is grounded in the context of the 21st century; all the influences and distractions of the modern world, the allure of science, the rise of the New Atheists, etc. * It is not a work of apologetics or a general introduction, but it's more of a series of reflections that will help people better understand the Catholic, Christian faith * It doesn't presuppose theological knowledge; it's written for the average layperson, not an expert or a student of theology * It's accessible, and the chapters are short enough for dwindling attention spans.
Tuesday, July 12, 2016
Very quickly after being sued in federal court (the suit that Rick recently noted), the Iowa Civil Rights Commission revised its brochure on public-accommodations issues under anti-discrimination laws, to say that churches were not places of public accommodations (except in unusual cases). The new language:
Places of worship (e.g. churches, synagogues, mosques, etc.) are generally exempt from the Iowa law’s prohibition of discrimination, unless the place of worship engages in non-religious activities which are open to the public. For example, the law may apply to an independent day care or polling place located on the premises of the place of worship.
Since there was a lot of publicity about the earlier language and the lawsuit, it's right, it seems to me, to note the change, and how quick it was.
Jim Gaffigan, the comedian, has been on talk shows recently as the second season of his great TV series has begun. NPR recently replayed and posted an interview he did last September with Teri Gross on "Fresh Air." A bit:
[GAFFIGAN:] You know, I need the concept of mercy for me to have some semblance of self-admiration. So in real life, I'm probably somebody who is more devout. That's not to say that I'm a well-informed Catholic. You know, I'm still in idiot, you know? Like, I know that Colbert could quote Thomas Aquinas and all this, but I'm somebody who - you know, because it's a necessity for me on a personal basis. I need it because I'm a lunatic.
GROSS: When you say you're a horrible person and a lunatic, what do you mean?
GAFFIGAN: I mean that I'm somebody that - you know, I think stand-up comedy is this - it's this kind of indulgence and narcissism. And you're on stage and because stand-up comedy is one of the few meritocracies in the entertainment industry, there's some kind of - at least for me, there's some kind of idea of control. And my faith kind of keeps me in touch with the idea that I'm not in control of things. And when I'm in touch with the idea that there is a higher power and that there is, you know, other factors at work, it - it kind of quells my narcissism. And a lot of the teachings really kind of keep me grounded. But, you know, the reason I say I'm a horrible person is I don't want myself to be presented as somebody who's a great Catholic. You know, it's, you know - the idea of being a practicing Catholic, it's - for me, it's like - I need a lot of practice, you know what I mean?
When he said basically the same thing on Bill Maher's show (this clip, start around 2:00), Bill responded, "Why do you take on yourself more burden than life gives you anyway?" (I.e. "why go around thinking that you sin?"). It was a perfect skirmish between the theistic imagination and what Reinhold Niebuhr called "The Easy Conscience of Modern [Secular] Man." I think Bill Maher is often very funny, but watching his show, it's not clear he thinks he's ever gotten anything really wrong.
The Christian Science Monitor began a seven-part series today on "How the push for gay rights is reshaping religious liberty in America." A central theme of the first article:
In their campaign for equal rights in America, gay men and lesbians have argued persuasively that they are being targeted simply because of who they are – and who they love.
Many religious conservatives are now making a similar appeal. They argue that their faith is an essential part of their being, and that attempts to belittle their faith or confine it to the four walls of a church is to consign them to second-class citizenship.
The piece quotes John Inazu and me among others. One of my quotes continues the theme of seeing parallels between the two sets of claims, gay rights and religious freedom:
“Just as it was unsympathetic to gay and lesbian couples to say, ‘Keep your relationship totally private,’ it is also highly unsympathetic to the religious believer to say, ‘You have a legal right to follow your belief in church but no right in any other realm of life, like charitable organizations or the workplace.’”
The whole series should be worth reading. The Monitor has devoted the resources to examining these issues in detail as the New York Times has done, but the first installment suggests it will present the religious-accommodation side more fairly than the Times did.
Monday, July 11, 2016
I've been carping for more than a decade here at MOJ about what I see as the central importance of Christian moral anthropology to the "Law and Catholic Social Thought" thing. Here's another little gem from Walker Percy (taken from a 1986 interview):
. . .
Could you tell me how you feel about your inspiring beliefs, how faithful you have remained to them?
If you mean, am I still a Catholic, the answer is yes. The main difference after thirty-five years is that my belief is less self-conscious, less ideological, less polemical. My ideal is Thomas More, an English Catholic—a peculiar breed nowadays—who wore his faith with grace, merriment, and a certain wryness. Incidentally, I reincarnated him again in my new novel and I’m sorry to say he has fallen upon hard times; he is a far cry from the saint, drinks too much, and watches reruns ofM*A*S*H on tv.
. . .
Is it possible to define your Catholic existentialism in a few sentences?
I suppose I would prefer to describe it as a certain view of man, an anthropology, if you like; of man as wayfarer, in a rather conscious contrast to prevailing views of man as organism, as encultured creature, as consumer, Marxist, as subject to such and such a scientific or psychological understanding—all of which he is, but not entirely. It is the “not entirely” I’m interested in—like the man Kierkegaard described who read Hegel, understood himself and the universe perfectly by noon, but then had the problem of living out the rest of the day. It, my “anthropology,” has been expressed better in an earlier, more traditional language—e.g., scriptural: man born to trouble as the sparks fly up; Gabriel Marcel’s Homo viator.
From a 1981 letter to the editor of the New York Times from Walker Percy:
. . . I don't know whether the human-life bill is good legislation or not. But as a novelist I can recognize meretricious use of language, disingenuousness, and a con job when I hear it.
The current con, perpetrated by some jurists, some editorial writers, and some doctors is that since there is no agreement about the beginning of human life, it is therefore a private religious or philosophical decision and therefore the state and the courts can do nothing about it. This is a con. I will not presume to speculate who is conning whom and for what purpose. But I do submit that religion, philosophy, and private opinion have nothing to do with this issue. I further submit that it is a commonplace of modern biology, known to every high school student and no doubt to you the reader as well, that the life of every individual organism, human or not, begins when the chromosomes of the sperm fuse with the chromosomes of the ovum to form a new DNA complex that thenceforth directs the ontogenesis of the organism.
Such vexed subjects as the soul, God, and the nature of man are not at issue. What we are talking about and what nobody I know would deny is the clear continuum that exists in the life of every individual from the moment of fertilization of a single cell. . . .
My Notre Dame colleague, Francesca Murphy (Theology) says "no," in this very worthwhile First Things piece. She concludes:
Liberalism is no heresy, and the market exchange from which it emerges does not sin against the light. It is a healthy byproduct of Christianity, and the only means by which Christians can fight Marxist-capitalism, the stage-managed freedom in which the benevolent will of the powerful consults reason, discerns what people “truly” need and want, and then superintends over and administers the always vulnerable freedom of ordinary people. If one were searching for Gnostic heresies, surely this technocratic political economy, which is very much with us today, is a good candidate for anathema.
Sunday, July 10, 2016
I viewed last week's horrific violence through the lens of John Inazu's important new book, Confident Pluralism, in which he affirms the importance of certain constitutional commitments (focusing on the right of association and the public forum and funding requirements) and encourages the "civic aspirations" of tolerance, humility and patience. He explains:
Tolerance is the recognition that people are for the most part free to pursue their beliefs and practices, even those beliefs and practices we find morally objectionable. Humility takes the further step of recognizing that others will sometimes find our beliefs and practices morally objectionable, and that we can't always "prove" that we are right and they are wrong. Patience points toward restraint, persistence, and endurance in our interactions across difference.
Judging from my social media feeds and a few face-to-face conversations, the divergence in our perspectives on last week's events is nearly overwhelming. Even among those who are on the front lines protesting police actions, for example, there can be a substantial disconnect. In the Twin Cities, our local #BlackLivesMatter leaders -- already viewed as radical and counterproductive by many whites -- are under pressure for not being radical enough, accused of having embraced "white neoliberal" principles of activism (namely pacifism). That pressure was on display last night, as protests here turned violent. I imagine that many participants on both sides of the debate about police conduct toward blacks would not only place less importance on tolerance, humility and patience than John does, but they might deem those aspirations as unrecognizable given the stakes and nature of the debate.
John has been closer to the post-Ferguson conversations than I have, so I know that his analysis incorporates the current reality of race in our country. From my limited engagement with his framework, three questions present themselves:
1) Under what circumstances does the harm principle serve as a boundary on the aspiration to tolerance? E.g., #BLM protestors may recognize that many of their fellow citizens do not share their belief that blacks are often treated unfairly and with unjustified violence by police, but that recognition is hardly a first step toward tolerance of that disbelief. (A similar point could be made regarding disagreement re abortion.)
2) To what extent is a mutual willingness to learn relevant facts a precondition to humility as a worthy aspiration? When certain beliefs are subject to empirical verification, does that create any sort of burden of inquiry before humility is relevant? Do I need to exercise humility toward my fellow citizen who contends that the Earth is flat?
3) Are there historical conditions under which "patience" is better viewed as a civic vice than as a civic virtue?
California is on the road to passing legislation, aimed at religious colleges' sexual-conduct policies for students, that would create serious conflicts for many of the state's Catholic and evangelical Protestant colleges. I've done an "explainer" article for Christianity Today that describes the bill (it's had a number of permutations) and its likely impact (students at these colleges would face a serious danger of losing their "Cal Grants," which are state educational grants, up to $9,000 yearly, for students from modest-income families). The article is in descriptive rather than normative format, but it aims to make the bill's likely consequences clear.
Saturday, July 9, 2016
From "Diagnosing the Modern Malaise" (1985):
[W]hat are we to make of a man who is committed . . . to the proposition that truth is attainable by science and that emotional gratification is attainable by interacting with one's environment and at the highest level by the enjoyment of art? It seems that everything is settled for him. But something is wrong. He has settled everything except what it is to live as an individual. He still has to get through an ordinary Wednesday afternoon. Such a man is something like the young man Kierkegaard described who was given the task of keeping busy all day and finished the task at noon. What does this man do with the rest of the day? the rest of his life?
Thursday, July 7, 2016
In the painful shadow of the Philando Castile and Alton Sterling shootings, I offer an essay over at America on why Catholic universities should be deeply engaged in today's racial justice struggle. Here's an excerpt:
Today’s university jeopardizes its ability to speak to today’s protestors when it departs from its mission of forming the person. Rising student debt and questionable employment outcomes have caused many families to approach college through a strictly economic lens. In addition there is increasing concern that the identification and cultivation of particular virtues represents a kind of moral paternalism. As a result more aspirational educational goals are pushed to the margins. The hollowing out of the university mission makes it difficult to engage meaningfully with today’s campus protesters. After all, they are not demanding better job training; they are demanding a more inclusive community. This is a deeply moral demand.
The Catholic vision of education has always been about formation—a relational endeavor that is best undertaken in communities marked by dialogue, interpersonal modeling and opportunities for reflection and growth. Knowledge has more than instrumental value, and the student experience aims at moral growth, not just professional preparation. This foundational orientation does not make answers to deep and difficult questions about diversity and inclusion easy, but it means that the deep and difficult questions are not distractions from the educational mission; they are why the church operates universities in the first place.
That's the title of a discerning essay, on our present political situation, over at Commonweal (here). An excerpt:
Neither party, then, offers a compelling vision of human well-being. The Republicans stand up for the unborn and families, but they refuse to address the economic and social roots of abortion and the precariousness material conditions that threaten so many families. The Democrats support basic economic fairness and stand against racism, but they are most animated by the right of each individual to choose their own conception of the good. They are more interested in tolerance and diversity than in true solidarity. Neither party espouses a conception of freedom oriented toward the common good. Libertarians dismiss the very idea of a common good, seeing only a collection of individual people with individual interests. Latter-day progressives start from a slightly different point of view but reach a very similar conclusion; they argue that a commitment to pluralism precludes any notion of a common good. Missing from both views is the deep sense that “we are all really responsible for all.”
Wednesday, July 6, 2016
The Journal of Family and Economic Issues has published an intriguing study testing the famous birth-control-pill-as-technology-shock theory articulated by George Akerlof/Janet Yellen in 1996. Remember that Akerlof and Yellen had argued that the emergence of the pill in 1960 followed by liberalized abortion laws into the 1970s were to blame for the precipitous rise in single motherhood into the 1980s. (By contrast, Charles Murray had blamed increases in welfare benefits, and William Julius Wilson, lack of employment.) I write about all this as it relates to Catholic teaching here.
Economist Andrew Beauchamp tests Akerlof's theory in reverse, analyzing the lack of state abortion funding on rates of single motherhood: “The results showed that women in states that removed public funding saw decreased single motherhood and increased cohabitation among women giving birth. Estimates showed a 13 percent lower chance of being single following a birth in a state where funding was removed. This policy impact is substantial. If the entire sample were to experience a removal of abortion funding, these estimates would imply that the probability of cohabiting or marrying among low-income mothers would increase by between 12 and 18 percentage points conditional on giving birth. These estimates mean that among the children of low-income mothers, the fraction of children living with both biological parents at the time of birth would rise by 10 percentage points.”
Not a particularly auspicious title for a post on a Catholic blog, it's true. But Tom and I don't see things too differently, though he is as usual more optimistic than I am. I think he undersells what can be read from the Stormans cert. denial. And the denial of cert. in Ben-Levi v. Brown (again with a J. Alito dissent). And the denial of cert. in Big Sky Colony, where I was also pleased to join another excellent amicus brief spearheaded by Tom himself urging review of the Free Exercise Clause issues. The Court just doesn't want any part of these issues right now.
But Tom's post makes me think that perhaps atrophy may actually be the best option on offer. Tom writes that "moderate-ish" liberals might be able to combine with the likes of Justice Alito to hear a case involving "state/local government action against Muslims, or against some other group that everyone agrees is a religious minority." That is because "liberal opinion" has accepted the various third-party-harms theories being floated about, and because of the expansion of the idea of harm "that modern welfare-state liberalism regards as 'public.'"
I think I agree with most of Tom's description here. Tom is probably right that, e.g., Christians with certain specific beliefs about sexuality are not and will never be, in the "liberal opinion" he refers to, the sort of viable "minorities" thought to deserve FEC protection. That "liberal opinion" is powerful now, growing, and likely to influence the ideological profile of the Supreme Court directly and indirectly for years to come. If that is true, then perhaps we should root for atrophy, if not death. Better the Smith rule, which at least has the advantage of being clear and reasonably predictable, than the rule of "liberal opinion" masquerading as constitutional law. Indeed, perhaps religious accommodation has always been infected by something of this quality. We accommodate when we don't really care--for prison beards, oddballs, and tiny, exotic sects to which nobody really pays attention. When we do care, we find ways not to accommodate (harm! third parties! dignity!). And as the ambit of the "public" increases, it becomes easier and easier to make claims about third party harms, particularly when those harms cut to the quick of "liberal opinion."
A participant in our colloquium in law at St. John's this spring, and a noted critic of religious accommodation (someone, as it happens, whose views in general don't often match up with my own), suggested that if given a choice between non-discriminatory religious persecution and religious discrimination, he'd opt for religious persecution. I can't say I agree. But this exchange makes me understand that view much more clearly.
Here's a short piece of mine, just out in U.S. Catholic, on the question of churches' tax exemptions. A bit:
But our tradition of exempting churches and religious institutions from taxes is justified and important. The separation of church and state is not a reason to invalidate or abandon these tax exemptions but is instead a very powerful justification for retaining them.
The Supreme Court’s precedents and popular opinion have been shaped, for better or worse, by Thomas Jefferson’s figure of speech about “a wall of separation.” This saying has often been misunderstood and misused. Still, Jefferson’s metaphor points to an important truth: In our tradition, we do not banish religion from the public square and we have not insisted on a rigid, hostile secularism that confines religious faith to the strictly private realm. We do, however, distinguish between political and religious institutions. They can productively cooperate without unconstitutional entanglement. . . .
. . . A political community like ours, that is committed to the freedom of religion and appropriately sensitive to its vulnerability, takes special care to avoid excessively burdening these institutions or interfering in their internal, religious matters. It’s not that churches’ contributions to the public good make them deserving of a tax-exempt status; it’s that, given our First Amendment, secular power over religious institutions is and should be limited. Governments refrain from taxing religious institutions not because it is socially useful to “subsidize” them but because their power over them is limited—and because “church” and “state” are distinct.
The point of church-state “separation” is not to create a religion-free public sphere. It is, instead, to safeguard the fundamental right to religious freedom by imposing limits on the regulatory—and, yes, the taxing—powers of governments. After all, as Daniel Webster famously argued in the Supreme Court (and the great Chief Justice John Marshall agreed) the power to tax involves the power to destroy, and so we have very good reasons for exercising that power with care—especially when it comes to religious institutions.