Tuesday, May 3, 2016
My colleague and partner in crime, Mark Movsesian, has posted his paper, Of Human Dignities, which argues that the concept of dignity as a norm of international human rights is in fact beset by fundamental disagreements about its content. Here's the abstract:
This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae, the Catholic Church’s declaration on religious freedom, explores the conception of human dignity in international human rights law. I argue that, notwithstanding a surface consensus, no generally accepted conception of human dignity exists in contemporary human rights law. Radically different understandings compete against one another and prevent agreement on crucial issues. For example, the Catholic Church and other religious bodies favor objective understandings that tie dignity to external factors beyond personal choice. By contrast, many secular human rights advocates favor subjective definitions that ground dignity in individual will. These conceptions clash, most notably in contemporary debates on traditional values resolutions and same-sex marriage. Similarly, individualist conceptions of dignity, familiar to most of us in the West, compete with corporate conceptions that emphasize the dignity of traditional religions — a clash that plays out in the context of the proselytism and the right to convert. Rather than try to forge agreement on a universal definition of dignity, I argue, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it.
Tuesday, April 5, 2016
St. John's Center for Law and Religion was delighted and honored to host Justice Samuel Alito at our colloquium in law and religion yesterday. Justice Alito discussed Hobby Lobby v. Burwell; Town of Greece v. Galloway; Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC; CLS v. Martinez; Salazar v. Buono; and Summum v. Pleasant Grove, as well as his dissent from denial of certiorari in Ben-Levi v. Brown and two free exercise decisions he authored as a Third Circuit judge, Fraternal Order of Police v. City of Newark and Blackhawk v. Pennsylvania.
We had a lovely day today as well, as Justice Alito discussed several important free speech cases in which he dissented with my constitutional law class–US v. Stevens, Snyder v. Phelps, and US v. Alvarez. It was a true pleasure to have him.
Friday, April 1, 2016
As Rick notes below, this week, the Supreme Court issued a somewhat unusual order in Zubik v. Burwell (the nonprofit litigation against the Obamacare contraception mandate) asking for more briefing. Here are the substantive provisions:
The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.
Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.
For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.
I can’t improve on Rick's insightful speculation about what this might mean. It’s hard, as he says, to escape the conclusion that this is probably good news for the petitioners (after the bad news of Justice Scalia’s passing). And it’s always the politically expedient thing to put the onus on insurance companies. Let them figure out how to comply.
But there is one way in which the order might not be so good from the claimants’ perspective. What of self-insured claimants? Any resolution to the case that would simply rely on insurers to resolve this issue would not account for those nonprofits, like the Little Sisters of the Poor, who self-insure. Shifting the (substantial) burden of compliance to the “insurer” in this sort of case is not really shifting it from the employer or from an objecting party.
Something perhaps to watch in the upcoming briefing.
Tuesday, March 15, 2016
We've been blessed and honored at St. John's Law School to have had, within the last month, visits to our Colloquium in Law and Religion by Professor Robert George (who gave a paper on "Religious Liberty and the Human Good") and Professor Mark Tushnet (who discussed his skepticism about religious accommodation in this recent piece). Two men; two rather different sets of views; a perfectly equilibrated set of perspectives for a seminar on such matters.
At the still point, there the dance is...
Wednesday, March 9, 2016
From "Hard Times," Book II, Chapter 6:
Utilitarian economists, skeletons of schoolmasters, Commissioners of Fact, genteel and used-up infidels, gabblers of many little dog’s-eared creeds, the poor you will have always with you. Cultivate in them, while there is yet time, the utmost graces of the fancies and affections, to adorn their lives so much in need of ornament; or, in the day of your triumph, when romance is utterly driven out of their souls, and they and a bare existence stand face to face, Reality will take a wolfish turn, and make an end of you.
Friday, February 26, 2016
Tom, thanks for your latest comment. Just three quick thoughts in response:
- The reason I quoted "over the truly long run" in my previous post was that this is the language I use in concluding my piece on Justice Scalia. I meant optimism over the truly long run. And it seems to me that's consistent with the post of mine on tragedy to which you link and with our exchange.
- As to the short run, yes, you are quite right. We don't agree at all about short-run optimism. And I think Justice Scalia's jurisprudential optimism may well have been a bad bet in the short run. Indeed, I suggest that he may have recognized as much toward the end of his career.
- But set that aside. What, exactly, is the convincing case to be made for optimism about, say, American constitutional law today or the present condition of American democracy and politics? You say that if we are ironists "we might be able to open our eyes, see incongruities, go in a different direction." Believe me, I'd be delighted to move away as quickly and directly as possible from the current goat rodeo of American democratic political life, a politics and a culture that "breeds alternating bouts of cynicism and hysteria." I'd even try opening my eyes a little wider if I thought it would help. But as I've written before, you and I have somewhat different views about the political psychology of the moment. Not much has changed in 3 years to make me believe that anybody has a strong desire to "go in a different direction" as respects our common political life. To the extent they do, the proposed directions don't generally seem to me to be improvements. But again, we may disagree about this too.
Wednesday, February 24, 2016
My buddy Berg asks about how my own frequently gloomy and lugubrious (and his much more sensibly ironical) views relate to Justice Scalia's. They are certainly different. I say as much in the little piece at Commonweal. On several issues, we saw things differently on the optimism index. Indeed, one might go so far as to say (though I did not go this far) that Justice Scalia's jurisprudential optimism may have betrayed him. Or perhaps that notwithstanding his disappointment in the Court, he remained optimistic with respect to the power of his views for law students and about the future of American democracy. Here, too, there may be sizable differences, not only with my views but with others here at MOJ.
Of course, differences like these may be informed by the different time periods in which one comes of age and develops. So, for example, there will be differences of perspective between a pre-baby boomer Reagan-era conservative and a gen X Obama-era conservative--differences of mood where at some points the 'chiaro' seems much brighter than the 'scuro' while at others all appears muted and dark. But all that aside, and over the truly long run, there is something to be said for optimism as a Christian virtue if not a Christian duty, isn't there?
Tuesday, February 23, 2016
Some reflections of mine on Justice Scalia at Commonweal, to add to the good comments and memories of Lisa, Rick, Tom, Erika, and Kevin. A bit from the end:
His optimism is perhaps nowhere more evident than in his Establishment Clause opinions, which express his appreciation for the traditions of the American accommodation of law and religion, and his hopeful expectation that American people would maintain, cherish, and be sustained by that inheritance. That optimism underlies much of his jurisprudence. In constitutional law, he believed that tradition is itself an independently powerfully reason in the law’s interpretation. That emphasis on American tradition led him to the view (often expressed in dissent) that “acknowledgement of the contribution that religion has made to our Nation’s legal and governmental heritage” is permissible under the Establishment Clause.
In my judgment, he was largely correct about this. Even more, however, Scalia was convinced that the American tradition of public religion—public prayer, for example—was a uniting force of civic fellowship. Hearing a public prayer in a tradition different from one’s own, he argued in his Lee v. Weisman dissent, would not lead to public discord, but to greater harmony, mutual understanding, and even civic “affection.” How old-fashioned this view seems amid today’s cacophony of demands for validation based on identity or interest group.
Yet it is in his free-exercise jurisprudence that Scalia’s optimism in the commonplace American character was tested and stretched to the breaking point. His seminal contribution was Employment Division v. Smith, where the Court held that a neutral law of general application did not implicate the Free Exercise Clause even if the law had the effect of burdening religion. Many critics of Smith (I am one) miss that what may first appear as a hard and parsimonious rule for religious freedom is closely coupled in Scalia’s opinion with a deep faith and optimism that people, acting through their legislatures, would do right by their religious brethren, would be magnanimous and charitable toward them whenever they could be:
Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.
Scalia was determinedly sanguine in his opinions about American solicitude for religion. Religious liberty and tolerant good will could never be eradicated from the core spirit and innate generosity of the American people. The people might go astray; they might make mistakes. But in the long run and in the main, the best and most secure outcomes for religious freedom will reflect popular negotiations rather than Court-imposed “solutions.”
So sanguine was he that even as late as 2012, Scalia—a deeply faithful and committed Catholic—could obdurately persist in telling John Allen in an interview that “if the bishops want an exception from the law [in this case the contraception mandate in Obamacare], they should try to get it through the democratic process…. Americans are very generous about accommodating religious beliefs.” The Congress that passed the Religious Freedom Restoration Act in 1993 was more pessimistic in its long-term assessment of the character of the American people. Alas, it was probably more accurate as well.
In fact, one may wonder whether Justice Scalia’s faith in the American people in the long run will be rewarded. Certainly he must have had his doubts. Especially toward the end, he must have known and regretted that his “wins” were so “damn few.” So they were, and so, perhaps, they will be. But to Scalia’s great credit, those doubts and regrets never appeared in his written opinions. And over the truly long run, optimism is not so bad a bet.
Tuesday, February 16, 2016
Here's a call for papers for a conference dealing with a interesting topic, via my friend Professor Michael Helfand.
Journal of Law, Religion & State
Rule of Law – Religious Perspectives
Call for Papers
The encounter of religion with the rule of law may generate tension but also mutual inspiration. The rule of law implies law’s supremacy over other normative systems and personal commitments. It also implies that law applies to everyone equally. Religion represents a normative system that may in some areas be different from—and stand in opposition to—state law. Religion may deny the supremacy of state law and pose divine law as supreme instead. It may, alternatively, seek exemptions from state law in those matters where the two conflict.
In this conference we seek to study this tension and discuss the following questions:
- Does religion (in general or a specific religion) accept the rule of state law?
- What are the boundaries (if any) of such acceptance?
- In what cases would religion challenge state law and in what cases would it seek exemptions?
- Can a policy of multiculturalism and of legal pluralism, which give more room to religious freedom, be reconciled with the rule of law or does it undermine it?
- What other policies should states follow in response to these tensions?
Religion may not only compete with state law but also inspire it, which leads us to investigate religion’s various understandings of the rule of law. Here is just one example. The concept of law in the context of the rule of law is ambiguous and open to different interpretations. Some (positivists) understand law as a set of rules fixed by social institutions, and others (natural law advocates) understand law as if it includes fundamental principles of justice and morality. Religions may take a position in that debate and contribute not only to the abstract understanding of law, but also to the identification of those moral principles that are part of law. We therefore also plan to explore the following:
- What is the position of religion with regard to the concept of law and the rule of law?
- Many religions developed partial or comprehensive legal systems of their own. Did religions also develop a concept of rule of law? What is its scope and meaning?
- The concept of rule of law also may be used in theological context as a metaphor to understand the boundaries of divine actions and intervention in the world. Is God constrained by law—and by what kind of law: law of nature, morality?
These and similar questions will be discussed in an international conference that will be held at Bar-Ilan University School of Law, Ramat-Gan, Israel, on November 20-22, 2016.
Submissions are invited on the themes outlined above. An abstract of 500 (max.) words should be sent to email@example.com no later than April 15, 2016. Please indicate academic affiliation and attach a short CV. The conference committee will notify applicants of papers acceptance by the beginning of June, 2016. The participants will be required to submit a first (full) draft of their papers three weeks before the conference. The final papers will be published in the Journal of Law Religion and State subject to review.
The organizing committee:
Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel
Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA
Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel
Wednesday, February 10, 2016
I completed my law and tradition cycle of posts today at Liberty Law with this one, Gratitude for Legal Traditions. Here is the rest of the cycle in one place:
- Tradition and the Constitutional Curator
- Locating Traditionalism in Jurisprudence
- Tradition and the Judicial Talent
- Magna Carta’s Votaries, Skeptics, and Traditionalists
- Comparing Traditionalism and Originalism
- Comparing Traditionalism and Originalism II
And here’s a little bit from the beginning of the most recent post:
The prospects for law and tradition are difficult to discern. This is in no small measure because the most frequent predictions about tradition’s future have little time for any traditions other than those of science and technology. And these generally are not presented as traditions but instead as repudiations of tradition—as simply rational responses to changing circumstances in the service of progress and present need. The prophets of the traditionless society never go quite so far as to strike out the traditions of science from their predictions.
Recently, my friends John McGinnis and Mark Movsesian engaged in an interesting exchange on the subject of tradition and contemporary politics and society. John argued that technology creates a culture and a politics relentlessly oriented to the future and deracinated from the past. Mark responded that traditions and traditional institutions survive, even today, because they speak to basic human nature and “most of us need the stability the past provides, the guidance of received wisdom.”
Each man makes his points. It is certainly true that substantive traditions—particularly substantive religious traditions—have been severely shaken by various contemporary tremors. They have been attacked directly and they have been weakened from within. And yet they have not been destroyed. Perhaps they cannot be destroyed so long as human beings are born to human beings. So long as parental care is necessary for the raising of children. So long as people seek to find meaning in an infinitely mysterious universe. So long as they depend upon rules, categories, and institutions which they cannot create ab ovo and for that occasion alone whenever changing circumstances demand it. So long as the autonomous acts of autonomous actors cannot achieve all of the ends that render life worth living. Just so long will people seek and find traditions, cling to them, and be grateful to them. Though they may become dissatisfied with them, human beings need traditions to live.