Wednesday, August 31, 2011
Many of our conversations on MoJ relate to religious liberty, and we should be concerned about how our legal system's commitment to religious liberty is carried out across faith traditions. My colleague Greg Sisk has a new paper out (with Michael Heise) examining the data regarding religious liberty claims by Muslims. Here's the abstract:
In our continuing empirical study of religious liberty decisions, we find that Muslims asserting free exercise or accommodation claims were at a distinct and substantial disadvantage in the lower federal courts for the period of 1996-2005. Holding other variables constant, the predicted likelihood for success for non-Muslim claimants in religious free exercise or accommodation claims was approximately 38 percent, while the predicted probability for success for Muslim claimants fell to approximately 22 percent (with the disparity being slightly higher among court of appeals judges). In sum, Muslim claimants had only about half the chance to achieve accommodation that was enjoyed by claimants from other religious communities.
Drawing on insights from legal studies, political science, and cognitive psychology, we discuss alternative explanations for this result, including (1) a cultural antipathy to Muslims as a minority religion outside the modern American religious triumvirate of Protestants, Catholics, and Jews; (2) growing secularism in certain sectors of society and opposition to groups with traditional religious values; (3) the possibility that claims made by Muslims are weaker and deserve to be rejected on the merits; and (4) the perception that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. Presenting a new threat to religious liberty, the persistent uneasiness of many Americans about our Muslim neighbors appears to have filtered into the attitudes of even such well-educated and independent elites as federal judges.
Great stuff, as always, from Steve Smith:
The Plight of the Secular Paradigm
For many it has been axiomatic that liberal democratic governments and the laws they impose must be “secular”; this assumption pervades both constitutional law and much political theory. But there are indications that this secular “paradigm of legitimacy” is losing its grip; thus, while urging a rehabilitation of secularism, Rajeev Bhargava suggests that “[o]nly someone with blinkered vision would deny the crisis of secularism.” This essay considers that crisis.
Part I of the essay discusses the nature of a “paradigm of legitimacy.” Part II outlines the strategies of assimilation and marginalization that historically have supported such paradigms and considers the paradigm shifts that can occur when these strategies prove ineffective. Part III illustrates these observations by reviewing the process by which, beginning in the fourth century, a Christian paradigm replaced an earlier Roman one and then in turn declined in favor of a more secular view. Part IV, the longest in the essay, discusses the rise of the secular paradigm, the strategies that have supported it, and the increasing futility of those strategies that have led to the present distress.
The conversation continues. Prof. Michael Baur wrote, here, about the role of natural law in the work of judges; Prof. Hadley Arkes responded, here; and now Prof. Baur replies (most of his reply is after the jump):
. . . I am grateful to Rick Garnett for facilitating this discussion, and to Hadley Arkes for offering his own input and for inviting a further response from me. I am pleased to join the company of those who find themselves in “heated agreement” with Prof. Arkes, but I would be even more pleased if we together might also convert at least some of this thermal energy into light.
Thanks to Rob for his posting yesterday on Professor Laurence Tribe’s recent SCOTUSblog contribution entitled “The Constitutional inevitability of same-sex marriage.” The Tribe post is a withering critique of a method of legal reasoning that has been and remains crucial to law making—be it law making by the legislature or by the judiciary: the natural law. Of course, Professor Tribe is no friend of the natural law [HERE Download Tribe on Natural Law] and scorns its use. Yet, without the natural law, we would not have the Declaration of Independence and the fundamental law of this country, the Constitution of the United States of America.
Professor Tribe also makes passionate arguments for the “constitutional inevitability of same-sex marriage,” and some of them are based on polls, evolving consensus, and the transformation of culture. In this context, he asserts that arguments contrary to his on these points necessitate “the Court to cut this baby in half.” I wonder if he would employ this phrase in the arguments he has made in defense of abortion (for there, the baby—millions of them—has been and is plainly cut in half)? He also derides the use arguments against same-sex marriage that rely on what he labels “pseudo-scientific claims.” He does not identify the reasoning underlying these claims, but I wonder how he would consider this argument: Let us assume that two planets which have not yet been inhabited by humans are to be colonized by them; on Planet Alpha, heterosexual couples only are assigned; on Planet Beta, only homosexual couples. In one hundred years, will both islands be populated assuming that reproductive technologies are not available to either group? I suggest that Planet Alpha will be; but Planet Beta will not. Why? The basic answer is to be found in the biological complementarity of the heterosexual couple necessary for procreation that is absent in same-sex couple. This is a scientific argument, but perhaps it is, in Tribe’s estimation, counterfeit.
Professor Tribe’s legal justification for same-sex marriage is established on liberty and equality arguments. I have addressed those in an essay that will be published soon [I hope] by our friends at St. John’s University. The text of the argument is HERE Download St. John's Essay November 2010.
Professor Tribe is a highly regarded advocate and professor of law, and he is a formidable challenger. But I say that on his Constitutional arguments of liberty and equality, he is mistaken.
This controversy hit extremely close to my home. A fight broke out yesterday at Rye Playland Park when a number of Muslim women were told by park staff members that they would not be permitted to wear their head scarves on certain rides. The park had received a number of Muslim visitors who were celebrating the end of Ramadan. A scuffle broke out after the refusal to allow some of the women to ride without removing their hijabs, and there was also some kind of report that a park employee touched one of the women.
The park has a safety policy against the wearing of any "headgear." I've been to Playland a number of times with my own family, and I've been required to take off my hat when I went on some of the faster rides.
What makes this a possible constitutional question is that Playland Park is government owned and operated. It is, in fact, the only such amusement park in the United States! But I cannot see any way in which, should a law suit be brought against Westchester County, the plaintiffs would win. This policy is clearly a law of general application, it is not targeted at any group, and it is overwhelmingly justified by serious safety concerns. The rides to which the policy applies (and those that the Muslim customers report being barred from riding) are extremely fast moving and jerky (I hate "Crazy Mouse" for this reason). Any First Amendment claim would almost surely fail. A sad episode nonetheless.
(Picture of the wonderful 1929 "Dragon Coaster" at Rye Playland Park) (x-posted CLR Forum)
Tuesday, August 30, 2011
Get Religion offers a helpful thought experiment to capture how misguided some of the media coverage of "Roman Catholic" groups can be:
Let’s say that a bunch of retired journalists from the Los Angeles Times got together and, with a few converts who yearn for the good old journalism days in that great city, form a news organization that we will call, oh, the Society of St. Otis Chandler. This group rents itself some printing presses and, using a template of a vintage masthead of the Los Angeles Times in 1965 or so, start publishing a newspaper that they call — wait for it — the Los Angeles Times.
This makes some people confused, especially when the leaders of this new-old Los Angeles Times start making pronouncements that directly contradict those made by the leaders of the real Los Angeles Times.
Is everyone following this? Good. Hang on.
Now, the leaders of the actual Times clearly have the right — like it or not — to say who works for the real Times and who is aligned with this pretend Times. So how would these editors feel if major news operations kept writing stories about statements by the Society of St. Otis Chandler and calling its members Los Angeles Times journalists in good standing?
Now, unfortunately, there is one more complication. Suppose that some of these splinter Times people decide that the leadership of the Society of St. Otis Chandler have not gone far enough. Suppose that they start yet another group, one that claims that the leaders of the new-new Los Angeles Times are not only wrong on key issues, but that they are not even journalists in the first place.
Now, do you think mainstream journalists would go so far as to say that these people, the members of the splinter group that left the larger splinter Times, are, in fact, Los Angeles Times journalists?
Lawrence Tribe says yes:
The case for same-sex marriage follows directly from Lawrence’s potent recognition of the right to dignity and equal respect for all couples involved in intimate relationships, regardless of the sex of each individual’s chosen partner. Sounding in the constitutional registers of due process and equal protection, Lawrence sought to secure a fundamental and yet fragile dignity interest whose boundaries necessarily extend far beyond the bedroom door. Notwithstanding a few half-hearted qualifications that Justice Scalia quite rightly dismissed as inconsistent with its underlying reasoning and as trivial barriers to same-sex marriage rights, Lawrence is thus incompatible with state and federal laws that refuse two men or two women the full tangible and symbolic benefits of civil marriage.
He may be right, though I still think that there is potential ground on which courts can choose to distinguish between the liberty interest presented by intensely private conduct (Lawrence) and more "public" child-rearing relationships (marriage). The "child-rearing" nature of marriage and the empirical basis for preferring the child-rearing facilitated by traditional marriage versus same-sex marriage present their own disputed questions, of course.
Jacques Lacan's famous discussion of Freudian psychoanalysis as a form of talking cure, in which the analyst is able to shape the meanings of the subject's hangups and mental infirmities, came to my mind during the recent exchange between Rick, Paul, Rob, and others (see below) on the issue of quizzing political candidates about how their religious beliefs will affect their decisions. Yesterday, as my colleague Mark Movsesian notes, Ross Douthat had a column on the issue, with a number of interesting recommendations for journalists.
But I had a thought that may strike some here as perhaps a little heterodox. I want to make a point in (partial, limited) defense of the Rortian "religion as conversation-stopper" view (which Rorty only really very partially revised after an elegant intervention by Jeffrey Stout a few years ago).
Sunday, August 28, 2011
"The Art of Theory," A student-run political theory journal at Yale, publishes "Convienent, short" essays (their ideal is Kant's "What is Enlightenment?" which is about 2500 words). In their current issue they have a brief piece by Patrick Riley on the ideal of justice as universal charity. Riley points out that this approach to thinking about justice has its roots in Christian neo-Platonism, but was eclipsed by Enlightenment thinkers, notably Hume and Kant.
Riley's focus is on Leibniz, drawing out the connections not only to Augustine, but to an important and enduring tradition of jurisprudence. He writes:
Leibniz did not write in vain when he insisted that the just person will be “wisely loving” and universally benevolent: in that he eloquently re-stated a tradition founded by Plato, Cicero, St. John, the young Augustine, and Dante and agreed with what is best in his Christian-Platonist contemporaries Pascal, Malebranche, and Fénelon. But he also looked forward: “[I]n the world of justice and love . . . . [l]et us never subordinate to a duty which is abstruse, remote and uncertain, an explicit and immediate duty to deal justly and to love mercy.” That is Marcel Proust, writing in 1900 in a language at once neo-Leibnizian and proto-Freudian.† The continuity between Plato and Proust, in making caritas and philia “wise” through sentiments de perfection and affection, places Leibniz on an infinitely graded continuum, which stretches spatially from Athens to Rome to Hannover to Proust’s Paris and to Freud’s Vienna, and temporally from the death of Socrates to the end-of-life triumph of Freud over cruelty and malevolentia.
Saturday, August 27, 2011
At NRO the formidable Michael New comments on the reaction of pro-choice bloggers to the recent story in the New York Times discussing the case of women who conceive twins or other multiples through IVF and then opt to “selectively reduce” the pregnancy to a single developing child. New’s remarks are here. The Times story is here. I previously posted on the Times piece here.
As New observes, these otherwise adamant proponents of abortion – including the likes of Frances Kissling, William Saletan, as well as commentators at RH Reality Check and Jezebel – “expressed a considerable amount of unease with women who reduce their [multiple] pregnancies to singletons.”
While New does not deny that these expressions may be sincere on some level, he does suggest that they may be strategic.
I think that something different is at work here. Supporters of legal abortion typically do not argue that they want abortion to be common or widespread. They make the case that it should be a legal option for women facing unique or difficult circumstances. They are also aware of polling data that shows that while majorities of Americans think abortion should be a legal option in cases of rape, serious health risks to the mother, or fetal deformity. However, they are also aware that most Americans disapprove of abortion in cases of economic hardship or a desire to have fewer children.
Now, since abortions are done in private, the rationale for most abortions will remain unclear. But women who choose to bear only singletons are seeking abortions out of convenience in a very visible way. Pro-choice activists realize that if this practice is seen as commonplace, that could weaken support for legal abortion.
Given the sensitive subject matter, the New York Times did its best to put a nonjudgmental spin on this. But the reaction of ardent pro-choice activists is very telling.
Put a bit more cynically, pro-choice advocates feign a kind of understated revulsion at the practice of “selective reduction” where the pregnancy is anything but unintended. This is done, notwithstanding the logic of abortion, which provides no principled basis for such opposition, but so as to appear moderate and reasonable in order to preserve an unbounded right to abort for any reason whatsoever.
The reaction of ardent pro-choice activists is, as Michael New says, “very telling” because, as with partial-birth abortion, “selective reduction” reveals a weakness in the armor of choice. The revulsion that most people feel in response to the procedure is not feigned but genuine. What those who value unborn human life must continue to do is ask the question: “Why? Why do you feel this way? Why do you recoil in horror at this particular choice?” If the question is pressed, and one is honest with oneself, the person who began as troubled only by “selective reduction” may find him or herself questioning the entire abortion regime.