Thursday, April 9, 2015
Professor Steve Shiffrin is an enormously thoughtful scholar of the First Amendment. He is a constant and welcome reminder to me that alignment in political views is in the end rather minor indeed in the greater scheme of scholarly affinity and insight. My own work has been very much influenced by Steve's even as his politics and mine differ in various ways.
Steve has a smart post on the religious accommodation controversy. In it, he picks up a theme that has characterized some of his work on the Speech Clause--that is, its arguably indefensibly broad modern scope. He writes:
Why do liberals value freedom of speech over freedom of religion? Why should the state tolerate hate speech on the basis of sexual orientation (not to mention race)? If permitting some religious individuals the ability to discriminate against gays and lesbians in the purchasing of products and services is a stigmatizing denial of equality, how much more stigmatizing is virulent hate speech? In addition, however difficult it might be for many liberals to muster any empathy for the evangelical Christian who feels a religious obligation not to serve gays or lesbians, the explicitly homophobic hate monger is surely worthy of substantially less respect which is to say – no respect.
Some liberals will say that the hate speech example involves speech, and discrimination is conduct. But speech is conduct, as is defamation, most forms of fraud, and perjury. Other liberals will say that in the area of free speech, we do not take the value of speech into account. This is true much of the time, but there are exceptions (obscenity, fighting words, commercial speech, near obscene speech, and private speech) and there should be more of them (depictions of animal cruelty targeted to sadists or masochists, gruesomely violent video games). Why shouldn’t this be one of the exceptions? Note these are the same liberals who believe that equality on the basis of sexual orientation should be a Constitutional right. In other words, they believe that homophobia like racism should be renounced in our Constitution. Of course, everyone should have a right to question the wisdom of our constitutional rights, even the equal protection clause, but that should not implicate a right to stigmatize and libel citizens on the basis of sexual orientation (or race).
It's an interesting set of questions. For more on the reasons for the decrease in broad American social investment in religious freedom by comparison with free speech, see Part IV of this paper (and in particular my friendly wager with Professor John Inazu about whether it is, or is not, only a matter of time before the Speech Clause suffers a similar fate).
Wednesday, April 8, 2015
Increasingly I am coming to believe that much scholarship in constitutional law, at least as respects commentary about contemporary controversies, may be characterized as the opposition of pioneers and police.
The pioneers see the Constitution as essentially limitless territory meant for exploration. Like the explorers of the Age of Discovery, they believe that what they bring to new shores--their values, aspirations, ideals, and other political and cultural desiderata--is more important than what they find. The role of pioneering scholarship is to articulate these desiderata and attempt to explain how they actually represent an improved--indeed, an ever-improving--topography of the constitutional territory. But part of their role is also to elude and outfox the police, with whom they disagree fundamentally in perspective and disposition.
The police see the Constitution largely as mapped terrain--their terrain. True, a few points on the map are not well known--unsettled outposts to which few people travel. But the general geographical metes and bounds are fixed and have been established for years. The role of policing scholarship is to study and gain expertise about that map. Whatever desiderata the police bring to their office they are disposed to locate in the historical map itself. But their role is also to prevent the pioneers from fulfilling their own projects--to monitor the pioneers' new map-making and to disrupt it at those strategic moments when the police believe it to be improper, unwise, or worse.
Of course there are all kinds of scholarship in constitutional law that are not captured by these archetypes. But when it comes to the large body of scholarship that attempts to intervene in some contemporary controversy, the metaphor holds up tolerably well.
Friday, April 3, 2015
We've got Nate Oman (William & Mary) blogging with us for the month at the Center for Law and Religion Forum. Come on over and have a look at his very fine first post, Indiana and Doux Commerce, which responds to various reflections of the political theorist Jacob Levy (McGill) on the relationship of religious freedom and commerce.
Thursday, April 2, 2015
First, Professor Doug Laycock has a very good piece/interview at the Religion and Politics Blog.
Second, I participated in a Bloomberg Law podcast with Professor Robert Katz on these issues. I thought we had a useful exchange. At the end of the interview, however, Rob was asked a question about the relevance of Hobby Lobby to these matters, to which he responded essentially that the two were disconnected. I didn't get a chance to jump in (had to leave to teach class!) but I have a different view and thought this quote from Doug's interview was apt:
For the first time in American history, government had made it unlawful, at least if you were an employer, to practice a well-known teaching of the largest religions in the country. The same-sex marriage debate has the same feature. This attempt to suppress practices of the largest faiths is a new thing in the American experience. And this huge escalation in the level of government regulation of religious practices is of course producing a reaction from religious conservatives, and is part of the reason for the current polarization.
UPDATE: And a third item, see my colleague Mark Movsesian's thoughts.
Wednesday, April 1, 2015
Rather an unfortunate metaphor in the by-line of Professor Dale Carpenter's recent post: "What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights."
One might have thought, even relatively recently, that religious freedom was a "civil right." But no longer: it is now said to be the enemy of "civil rights." And I suppose that what is "weaponized" will depend on one's perspective. From a different point of view, one might instead believe that it is the vast arsenal of antidiscrimination norms, and the staggering expansion of the state's interest in vindicating specific sorts of dignitarian harms, that have been "weaponized." But Professor Carpenter need not worry about one small sword in Indiana or Arkansas; the armamentarium arrayed against it is truly stunning.
Here's how I see the situation, as described in my essay, Free Exercise By Moonlight, from which I'll post a few selections in the coming days as it is intimately connected to these topical concerns (footnotes omitted):
The modern expansion of the reach of the state has resulted in a concomitant increase in the kinds of recognition, and validation, that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good. People want to be dignified by the state, their self-worth to be accorded official validation, and they perceive state-countenanced indignities meant for the protection of religious freedom as real injuries demanding state remediation.
Yet offenses to dignity are only the most extreme example of the overall expansion of government interests. For we are now at some considerable distance from Smith’s dystopian warnings about the threat of anarchy or governmental impotence that would result from overgenerous religious accommodations. In a society in which the government assumes an increasingly large role in the life of the citizenry, more injuries are transformed into legally (and perhaps even constitutionally) cognizable rights. The number and type of state interests that qualify as “compelling” swell to match the new dignitarian and other harms caused by permissive religious accommodations. And the protection of rights becomes a zero sum game, as every win for religious accommodation is a legally cognizable, but unvindicated, loss for somebody else.
Monday, March 30, 2015
I have a new article in draft called Free Exercise by Moonlight. It is about the current condition of permissive religious accommodation. It is pervasively lugubrious. Here is the abstract:
How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.
Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.
In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.
Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.
Thursday, March 26, 2015
"It is by obeying the judgments of our predecessors that we are empowered to make judgments of our own."
That's from a superb essay on originalism and "the rule of the dead" by Joel Alicea in the latest issue of National Affairs. Alicea's piece is particularly useful on the necessary connection of obedience to the will of the dead and the concept of written law (and the disconnection between the concept of written law and obedience to the will of the living). A bit more:
By obeying the dead, the living can demand obedience. As Judge Frank Easterbrook once remarked, "Decisions of yesterday's legislatures...are enforced...because affirming the force of old laws is essential if sitting legislatures are to enjoy the power to make new ones." That is, "[p]eople accept old contracts and old laws because they know that this is the only way to ensure that promises to them are kept." We, the living, accept the binding force of laws passed before our time so that our laws will be obeyed, both in our own time and beyond.
This dynamic between the living and the dead not only undergirds written law; it is foundational to a proper conception of popular sovereignty under the Constitution. Indeed, it is at the heart of what Whittington has called the dualist conception of democratic theory. Under this framework, "the people" exist in their sovereign capacity only when they engage in higher lawmaking — the making and amending of the Constitution. This lawmaking is of a higher order, as it sets the rules by which all other laws can be made and sets the limits of what those laws can do. At all other times and for all other lawmaking, ordinary politics is the norm, and in such circumstances, the people do not act as the sovereign — though they retain the power to reassert their sovereignty at any moment through the process of constitutional amendment. This is not to deny, of course, that the people remain the ultimate source of authority in a polity during a time of ordinary politics; it is simply to say that they and their representatives are acting under or subordinate to the rules that the people established in their sovereign capacity.
This conception of popular sovereignty stems from the same kinds of considerations that uphold written law. In the same way that the dead-hand argument is hostile to any form of written law, saying that the people act in their sovereign capacity in everyday politics is hostile to a written constitution. A constitution is meant to guide and limit ordinary politics, and if ordinary politics were the domain of the people acting as sovereign, then every statute would be the equivalent of a constitutional amendment, and the idea of a written constitution would become meaningless.
These philosophical assumptions underlying written law are the essence of originalism. We must submit to the commands of the dead in order to govern ourselves, and in order to submit, we must understand those commands according to their original meaning. It would be farcical to claim that we are being obedient to a rule if we arrogated to ourselves the power to change the meaning of that rule. It would be tantamount to telling past generations: "We will obey your laws — so long as they mean what we say they mean." The rejection of the dead-hand argument is therefore not just about defending the validity of written law in general; it is about defending originalism's core philosophical assumptions.
Similarly, we see that the argument over the dead-hand of the past is about far more than the viability of originalism. At stake is the idea of written law, of popular sovereignty, and of society as an intergenerational partnership between the living and the dead.
Monday, March 23, 2015
A couple of interesting new book reviews. First, a review by John Inazu of Steve Smith's most recent book, The Rise and Decline of American Religious Freedom, over at the Hedgehog Review (though John's original title, "Steve Smith, Optimist" really sang). Here's the ending:
Smith published Rise and Decline just prior to the Supreme Court’s decisions in Burwell v. Hobby Lobby and Holt v.Hobbs, and it’s worth considering how those cases fit his story. Both were wins for religious liberty, but both were statutory rather than constitutional decisions. In one sense, the focus on statutes is completely unsurprising given the state of constitutional free exercise concerns. But it’s not clear that these statutory protections by themselves alter the direction of Smith’s narrative of decline. For that kind of directional change, we would need the Court to re-examine its reasoning in the 1990 peyote case, Employment Division v. Smith. Such a re-examination would be entirely warranted. As Laycock rightly noted in an amicus brief filed just this month, the rule announced in the peyote case came unexpectedly (the rule “was neither briefed nor argued” to the Court) and the decision “cannot be said to have become embedded in the law.” But the Supreme Court has thus far not budged. And as long as that decision stays on the books, Smith may have been better off basing the title of his latest book on an article he wrote in the Harvard Law Review a few years ago: “Discourse in the Dusk: The Twilight of Religious Freedom?” Even then, Smith’s question mark might be too optimistic.
Second, my colleague Mark Movsesian's review over at the Liberty Law blog of Gerard Russell's book, Heirs to Forgotten Kingdoms. Here are Mark's concluding paragraphs:
There is a danger in treating Copts and other Middle Eastern Christians like this. A major obstacle to getting American Christians interested in the plight of Middle Eastern Christians is the fact that they seem so foreign, so distant from the lived experience of Christianity in the United States. Accounts like Russell’s inadvertently emphasize the “otherness” of Middle Eastern Christians, thereby making it even less likely that they will draw the attention of Americans in a position to help. Of course, this is not Russell’s intention. As I say, he has genuine sympathy and admiration for all these groups, including the Christians. But his portrayal of them may have an unintended and unfortunate effect.
Nonetheless, this is an enjoyable and valuable book, instructive and a pleasure to read. It should appeal to anyone with an interest in the history of religion and the Middle East—indeed, anyone with an interest in the human spirit itself.
Wednesday, March 11, 2015
A worthwhile reflection at the always interesting Hedgehog Review by Wilfred McClay. Here's an interesting bit on the difference between memory and unfiltered, endlessly accreting deposits of historical data:
Memory is the very core of our personal identity, and it is most powerful when it is purposeful, and selective. Above all, it requires that we possess stories and narratives—contexts—that link facts in ways that are both meaningful and true, rather than treat them as a mass of disaggregated data, to be exploited as we, or others, might wish. What makes for intelligent and discerning memory is not the mere capacity for massive retention, but a certain balance and order in the mental economy of remembering and forgetting. In other words, memory takes an active role in thinning out the mental trees so that the forests can be discerned. We need to retain less if we are to remember more. In so doing, we may rediscover the enduring virtues of ink on paper, of scripta that remain in one place, as the vehicle for a new kind of samizdat, one that eschews the digital grid altogether.
Tuesday, March 3, 2015
An interesting piece in the New York Times yesterday. The reason provided in the article is that the public school curriculum draws a hard line between value claims (opinions) and other sorts of claims that can be "tested or proven" (facts). I wouldn't think this is solely a feature of the contemporary public school curriculum, or even of our particular moment. Indeed, this kind of critique of early education is familiar from previous periods and cultural settings. See, e.g.:
In their second chapter Gaius and Titius quote the well-known story of Coleridge at the waterfall. You remember that there were two tourists present: that one called it 'sublime' and the other 'pretty'; and that Coleridge mentally endorsed the first judgement and rejected the second with disgust. Gaius and Titius comment as follows: 'When the man said This is sublime, he appeared to be making a remark about the waterfall... Actually ... he was not making a remark about the waterfall, but a remark about his own feelings. What he was saying was really I have feelings associated in my mind with the word "Sublime", or shortly, I have sublime feelings' Here are a good many deep questions settled in a pretty summary fashion. But the authors are not yet finished. They add: 'This confusion is continually present in language as we use it. We appear to be saying something very important about something: and actually we are only saying something about our own feelings.' ....
The schoolboy who reads this passage in The Green Book will believe two propositions: firstly, that all sentences containing a predicate of value are statements about the emotional state of the speaker, and secondly, that all such statements are unimportant. It is true that Gaius and Titius have said neither of these things in so many words. They have treated only one particular predicate of value (sublime) as a word descriptive of the speaker's emotions. The pupils are left to do for themselves the work of extending the same treatment to all predicates of value: and no slightest obstacle to such extension is placed in their way. The authors may or may not desire the extension: they may never have given the question five minutes' serious thought in their lives. I am not concerned with what they desired but with the effect their book will certainly have on the schoolboy's mind. In the same way, they have not said that judgements of value are unimportant. Their words are that we 'appear to be saying something very important' when in reality we are 'only saying something about our own feelings'. No schoolboy will be able to resist the suggestion brought to bear upon him by that word only. I do not mean, of course, that he will make any conscious inference from what he reads to a general philosophical theory that all values are subjective and trivial. The very power of Gaius and Titius depends on the fact that they are dealing with a boy: a boy who thinks he is 'doing' his 'English prep' and has no notion that ethics, theology, and politics are all at stake. It is not a theory they put into his mind, but an assumption, which ten years hence, its origin forgotten and its presence unconscious, will condition him to take one side in a controversy which he has never recognized as a controversy at all. The authors themselves, I suspect, hardly know what they are doing to the boy, and he cannot know what is being done to him.
CS Lewis, The Abolition of Man, Chapter 1 ("Men Without Chests") (1943).