Mirror of Justice

Against Agape as (Even the Highest Kind of) Self-Love

Rob quotes Josef Pieper (criticizing Anders Nygren) that "[t]he call for an utterly disinterested, unmotivated, sovereign agape love that wishes to receive nothing, that is purged of all selfish desire, simply rests upon a misunderstanding of man as he really is," and that agape is a form (the highest form I imagine) of self-love, "properly understood as 'desire for fullness of being.'"  I think there's an important point there, that Christian love needs to have a connection to how human beings really are.  But I also worry that if this is the sole description, it loses an essential element in Christianity, namely the element of tension: that is, that the consummation of human existence in Christ would not just fulfill more deeply what we are or desire now, but radically transform what we are or desire now.  I worry that statements like the quotes of Pieper's can smooth over the strangeness of Jesus's demands, such as "love your enemies" and "resist not evil," in finding too much or too simple a commonality between our loves and distinctively Christian love.

Although I don't know Pieper's work, this quote also suggests that Pieper gets Nygren wrong in reading him to say that it's "our love" that gives people value, as opposed to God's love.  Whatever one thinks of the idea that value comes solely from God, that's quite different from saying that it comes from us, no?

Thoughts, Rob or others?

Christian Century Piece on Same-Sex Marriage and Religious Liberty

I have an article up on same-sex marriage and religious liberty in the online version of The Christian Century, the moderate-to-liberal Christian magazine.  Sample paragraph, for the argument that exemptions should extend to religious organizations broadly and to small businesspeople who would personally have to faciliate a same-sex marriage to which they conscientiously object:

Protecting objectors generously is consistent with America's long tradition of free exercise of religion. People from many perspectives—religious progressives as well as traditionalists—should affirm the principle that the exercise of religion does not stop at the church door, but carries over into organizational works of charity and justice motivated by faith. Religious exercise also extends into the workplace. The argument "Don't impose your personal moral beliefs when you enter the commercial world" should ring especially false in the wake of recent financial scandals. Legal rules should not discourage people from relating their conscientious beliefs to their business, even if others disagree with the beliefs.

Steinfels on Same-Sex Marriage and Religious Liberty

In this week's NY Times "Beliefs" column, Peter Steinfels writes about the efforts (involving three MOJers, Perry, Garnett, and Berg) to add meaningful religious-liberty protections to statutes recognizing same-sex marriage.  He isn't enthralled with the literary style of our proposed model exemption (in the letter you can link to here): "The language these scholars have crafted to balance [the] competing concerns is rather less eloquent than 'in sickness and in health' and 'till death do us part.'”  (What do you want; we're law professors.)  But he does, I think, implicitly endorse the importance of the project.

The Continuing SSM / Religious Liberty Debate in New Hampshire

After the New Hampshire House narrowly refused yesterday to pass a same-sex marriage bill with reasonable religious-liberty protections demanded by Democratic governor John Lynch, there now appear to be negotiations to return to the issue.  New Hampshire seems likely to pass SSM sometime soon; the question is whether it will act as a decent model for allowing religious traditionalists to follow their conscience as well.  As background on the issues, here is the letter that Robin Wilson, Carl Esbeck, Rick, and I wrote to the governor on May 1.  [UPDATE: Here too is the letter that Professor Doug Laycock wrote to the governor on April 30 supporting same-sex marriage but also strong religious exemptions.]

The original New Hampshire bill had a wholly inadequate provision protecting only clergy from actually having to solemnize a marriage.  The governor's proposal would, among other good things, protect other religious organizations and their employees, and in contexts beyond the marriage ceremony itself that involve "promotion" of a marriage: for example, a religious college objecting to including same-sex couples in married-student housing.  The governor's proposal is not perfect; it wouldn't (as we argued should happen) protect individuals in small commercial businesses, like wedding photographers, who personally, directly participate in a marriage ceremony.  But Gov. Lynch nevertheless deserves credit and support for standing up for protecting the deep beliefs and identities of both groups, traditionalist objectors as well as gay couples.  

NH Legislature Rejects Religious Exemptions, Likely Killing SSM Bill

The New Hampshore legislature has narrowly refused to accept the governor's demand for a meaningful (but still pretty modest) religious exemption in the state's same-sex-marriage bill.  I'm waiting on further reports, but it sure looks like we have a case here of some same-sex-marriage advocates (I can't yet calculate just how many) being more willing to kill recognition of same-sex-marriage than to give any quarter to traditionalist objectors and their religious liberty.

Updates to Call for Papers on "Christian Realism and Public Life: Catholic and Protestant Perspectives"

I've made updates to the Call for Papers for this conference, to be held at St. Thomas in Minneapolis on November 20-21, 2009, and sponsored by the Murphy Institute for Catholic Thought, Law, and Public Policy.

Paper proposals are now due June 30, with notification by July 20.  The committed plenary speakers include Jean Bethke Elshtain (social and political ethics-Chicago), Robin Lovin (social ethics-Southern Methodist), David Skeel (law-U Penn), John Carlson (just war thought-Arizona State), William Cavanaugh (theology-St. Thomas), James Turner Johnson (just war thought-Rutgers), and Jeanne Heffernan Schindler (Catholic social thought-Villanova).

Article on Religious-School Funding and Educational Pluralism

Apropos of the discussion between Steve and Rick, I've just posted a short article on SSRN, based on a talk concerning school funding that I gave to a Rome audience in February.  Here's an abstract:

The pattern of church-state relations in the United States presents what many Europeans may see as a paradox. America is by far the most religiously observant of Western nations, yet it provides far less than many Western European nations in government support for religiously affiliated education at the primary and secondary levels, the most important years in forming children’s minds. This article, written for a European audience, reviews two explanations for the American tradition of no financing. One is “pluralist,” asserting that religious primary and secondary schools can better maintain their independence and identity without state aid because aid brings state regulation; and the second “cohesionist,” asserting that while nonsectarian religion may be socially valuable, schools of particular denominations undercut social unity by separating children in their formative years and therefore should not be encouraged with government support. I offer a few reasons why the pluralist approach to education is more attractive than the cohesionist approach. Finally, I assess whether the tradition against financing of religious primary and secondary schools does in fact promote educational pluralism, and I conclude that, on balance, it is better for pluralism that religious schools have the option to receive state financing.

"A Reprieve on [D.C.] Vouchers"

The President supports extending the program's funding, but for current students only.  The Washington Post comments here.

A Few More Thoughts on Conscience Protection

I appreciate Cathy Kaveny's column and post and Rob's further post on conscience.  A few thoughts.

First, Cathy and Rob are absolutely right to emphasize that a commitment to conscience must be principled, not simply special pleading for, or a second-best means to advance, one's own views.  That doesn't mean, of course, that one is obliged to support every assertion of conscience with which one disagrees.  All such assertions are limited by the need to protect the interests of others, and one can take conscience seriously while still deciding in a given case that protecting it would impermissibly violate another's interest.  In particular, one can quite defensibly say that the question whether another human being is entitled to the most basic protections, including life, cannot be governed by individual conscience.  So to me, a pro-life advocate is not at all necessarily inconsistent in rejecting conscience claims to commit abortions while supporting conscience claims to refuse to perform them.  By contrast, I think, we are increasingly coming to see that if we take claims of conscience seriously and require that state-imposed harms to conscience be justified by palpable, non-speculative social concerns, then it is going to be difficult to justify a great many forms of state discrimination against same-sex relationships.

Second, there are indeed important differences in the degree to which an objector would be facilitating conduct s/he opposes; and only with some showing of closeness can society recognize a claim of conscience (is the night receptionist at a hotel really personally involved in the conduct of couples using the rooms?).  But I do think that (on a distinct though related question) we ought to take seriously the burden on conscience that occurs when people are excluded from a profession or occupation because of a state-imposed demand.  As Doug Laycock has pointed out (in this book), historically a central violation of religious liberty under the English establishment was the test oath, the state exclusion of Catholics and other dissenters from a range of occupations, "including positions of responsibility in the civil and military service, solicitors, barristers, notaries, school teachers, and most businesses with more than two apprentices."  We can't simply say that Catholics voluntarily gave up their rights to participate in those occupations by remaining Catholics, or (in Rob's words) that Catholics were "making an affirmative claim  to be empowered in [their] choice of profession."

Admittedly there's some difference when the exclusion is based on particular conduct rather than simple religious identity.  But the lesson still remains that exclusions from a range of occupations--and today's nondiscrimination requirements can indeed affect a wide range--will burden individuals and cost society the contributions of significant groups of talented, conscientious people.  We are under some obligation, I think, to ask whether a rule that effectively excludes a set of conscientious objectors from a profession or occupation is really necessary (as is obviously the case with a rule requiring executioners to perform executions).  If it's not necessary, it may suggest a hostility to the group's beliefs or at least a callous indifference.

That brings up a third point.  Cathy says, and I agree, that "sound legislation needs to take into account the interests of vulnerable third parties."  But the flip side, which she doesn't mention, is that when third parties are not vulnerable or significantly affected, no strong reason exists to override the prima facie value of consicence.   the majority of the controversial recent cases about same-sex couples -- the New Mexico wedding photogapher, the Christian running small rental properties, Catholic Charities' banishment from adoptions in Massachusetts -- there was not the slightest showing that same-sex couples had any difficulty finding another provider.  A significant part of the motivation for fining or excluding those objectors, I think, has been to prevent offense to others (not material harm), or for the state to express disapproval of the objector's belief -- which makes these cases look more and more like the English test-oath exclusions.

Running through many of these points -- and necessary to make sense of them -- is a prima facie distinction between burdens on conscience from the state and from private parties.  Except in cases of market power, private parties usually cannot prevent others' access to goods, services, or occupations; in a market society, there is usually another willing provider.  But the state can shut down access altogether.  We could implement this distinction by eliminating the laws against private discrimination; but because those laws don't always affect conscience, and experience has shown the laws are sometimes necessary, they can be justifiable as a default.  Then the way to balance conflicting claims of conscience is to have non-discrimination laws with meaningful exemptions that presume conscience is protected except in cases where it would choke off access.

Arguments for Religious Liberty Under Same-Sex Marriage: Latest Version

Four of us legal academics (Garnett, Wilson, Esbeck, and Berg) who have been pressing legislators for religious liberty protections in same-sex marriage laws have a slightly revised version of our arguments in this letter.  We sent it to the governor and legislative leaders in Maine, where one house has approved SSM implementation and the other is set to vote next week.  Meanwhile, bills recognizing SSM in New Hampshire, with a very narrow religious exemption, have passed both houses and are in a conference committee; and the issue is coming to a head in other places as well, including Iowa and the District of Columbia.

In the latest letter we clarify our proposal for exempting organizations and individuals who object to facilitating a same-sex marriage, to provide that the exemption may be overridden in cases where the marrying couple cannot obtain similar services from another source and the inability to obtain the services causes "substantial hardship."  In some sparsely populated rural areas, one can imagine all of the service providers (caterers, photgraphers etc.) in a large geographic area refusing to provide services to a same-sex couple marrying.  We think this will happen infrequently, and we emphasize that the hardship the couple faces must be substantial, "not mere inconvenience or symbolic harm."  We also say that clerks or other government officials cannot refuse to issue a marriage license, and thus block the marriage, "if another government official is not available and willing to do so."  Speaking for myself, I think that these clarifications balance the conflicting interests properly and also increase the chances that an exemption extending beyond churches to religious non-profits and commercial service providers will pass.