Mirror of Justice

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Tuesday, May 19, 2015

A Bit of Pessimism on the New Pessimism

This column by Damon Linker is a useful summary of some of the current debates concerning the "Benedict Option"--the burgeoning pessimistic weltanschauung inspired by Alisdair MacIntyre's closing words in After Virtue, and characterized by:

[T]raditionalist Christians choosing to step back from the now-futile political projects and ambitions of the past four decades to cultivate and preserve a robustly Christian subculture within an increasingly hostile common culture. That inward turn toward community-building is the element of monasticism in the project. But its participants won't be monks. They will be families, parishes, and churches working to protect themselves from the acids of modernity, skepticism, and freedom (understood as personal autonomy), as well as from the expansive regulatory power of the secular state.

I won't consider the virtues and vices of such a course here. I want instead to suppose that "traditionalist Christians" (and other disaffected constituencies) pursue this approach. And I will assume that by pursuing it, they hope and believe it might be successful. 

The principal question I have is: what cause have they so to hope and believe? Does the success of the Benedict Option not ultimately depend on its political and legal feasibility? Does it not flower or wither at the pleasure of the very culture from which "traditionalist Christians" desire insulation? The preferred instrument of social control in that culture is law. Linker says that the new Benedictines "will presumably still vote and contribute to various public causes, especially those that promise to protect their interests." Yet having withdrawn from politics and law, for whom will they vote? What sort of enfeebled candidates and causes will remain to protect their interests? What legal and political power will want their socially toxic contributions? As I've wondered aloud here before:

There is an assumption, one that one hears with some frequency these days, in some of the talk about focusing elsewhere than law, that if we do so the state and those many that stand opposite will be appeased. They will leave us alone. We will be able to go on defending positions we find important, living the way that we think best, and the state will take its ball and go home. I think that assumption is false. First, I had thought the whole point was to stop discussing law and politics and start talking about something else. And second, skepticism about this assumption is one reason that I admire the difficult work of Rick, Tom Berg, Douglas Laycock, and others. But it is also the reason that I am uncomfortable with the strategy of sympathetic reciprocity that I sometimes see in Tom's always deeply thoughtful commentary. Perhaps mine is an overly pessimistic disposition--and I've now been dutifully admonished about the shortcomings of "sourpusses." But the case here is simpler: if [Jody] Bottum really believes that singing in the trees and rivers will make abortions less common, I'm afraid I see things differently. The state and those on the other side of the issue will see to that. They will be the only game in town.

The Benedict Option claims to be a withdrawal from politics and law. But it is through politics and law that the conditions that constitute the Benedict Option will be permitted to exist, and probably not as an all-or-nothing affair, but through a series of carefully negotiated compromises. Is not the Benedict Option's contemplated political and legal withdrawal a fantasy--a sort of escapism--that is likely to be the very cause of its failure? 

These are questions for the new pessimism asked, admittedly, from a lawyer's point of view. And perhaps there are some answers to them. But if there are, they will be answers rooted in and dependent upon law and politics.

May 19, 2015 in DeGirolami, Marc | Permalink

Friday, May 15, 2015

Conference on Kent Greenawalt

I was very pleased to take part in a conference yesterday at Columbia Law School honoring my old master, Kent Greenawalt, and 50 years of his teaching and writing. Together with Paul Horwitz and Andy Koppelman, I was on a panel involving church and state. Subsequent panels followed on free speech and legal interpretation (chiefly statutory interpretation, which has been Kent's primary focus historically). I took the liberty of saying something about criminal law as well, yet another area in which Kent has made major contributions, including as one of Hebert Wechsler's colleagues in revising the Commentaries to the general part of the Model Penal Code. Paul has a nice post on the event.

Here's a quote of Kent's I found in a piece written about a decade ago: “Criminal law scholars are much more divided about desirable approaches than they were in the 1950s, and even among centrist scholars, no one person now has the distinctive stature that Herbert Wechsler enjoyed.” Some of my comments considered and adapted that general thought in the context of law and religion scholarship today, where it is also apt for various reasons.

Just three additional notes from the panels. First, on the speech panel, there was some interesting discussion about the plausibility of the Austinian idea of performative utterances (a concept used and applied by Kent in this book)--whether the distinction between performative and non-performative speech holds up, or whether all utterances are in some way performative and so we need instead to focus on the quality of the performative speech at issue (threats of violence are different for regulatory purposes than a comment at an academic conference, though there may not be a big difference for performance purposes). Second, on the legal interpretation panel, Fred Schauer criticized the notion that "public meaning" cannot be ascertained without recourse to someone's intentions (I believe Larry Alexander among others holds something like the opposite view), though of course one need not subscribe to original public meaning in order to believe that public meaning is coherent. Third, I had never quite realized (though I guess I should have) just how much sympathy Jeremy Waldron has for textualism. Jeremy talked about a seminar in statutory interpretation that he and Kent ran in the late 1990s and it was clear how much they differed in their respective approaches (and how much they enjoyed the debate). Jeremy's talk included 12 ways in which legislation is qualitatively different from other group expression. One of the 12 was that legislation is "dangerous," which I thought was an interesting thing to say.

May 15, 2015 in DeGirolami, Marc | Permalink

Friday, May 8, 2015

Rights and Accommodations

Thanks to Susan for blogging about the conference she is attending. I'm sure it will be a very interesting and diverse set of presentations.

I did have one question about what Susan reported as one of EJ Dionne's "provocations." It's the one wherein Dionne distinguishes between "rights" and "accommodations" and "what we are trying to do in a pluralist society, i.e. find ways to accommodate conflicting interests," without "constitutionaliz[ing]" them.

I assume that the focus of the program Susan attends is on the sorts of questions that tend to fall into the "free exercise of religion" basket. And I quite agree that it would be nice not to have to constitutionalize so much, to have so many "rights." It would be far more socially attractive voluntarily to undertake a few more self-imposed burdens of civic tolerance. Unfortunately, that battle has been lost for quite some time with respect to the Establishment Clause, beginning circa 1947 and continuing right on through the 20th century, so much so that many commentators just think of the Court's current, heavily constitutionalized Establishment Clause as the perennial state of affairs. Yet it would be unfortunate in a discussion about "rights" and "accommodations" to lose sight of the other side of the religion clause coin. Perhaps free exercise is simply catching up.

May 8, 2015 in DeGirolami, Marc | Permalink

Thursday, May 7, 2015

Epstein on Fathers and "Parenting"

Interesting and usefully contrarian observations from the essayist Joseph Epstein about the relationship of fathers and children in past, "pre-psychological" generations and how psychological-age fatherhood (following in the train of its female counterpart) now is involved in a rather culturally specific activity or project of "parenting." Not all of what Epstein describes as long-lost is to be regretted. But this bit was stimulating:

I have a suspicion that this cultural change began with the entrée into the language of the word parenting. I don’t know the exact year that the word parenting came into vogue, but my guess is that it arrived around the same time as the new full-court press, boots-on-the-ground-with-heavy-air-support notion of being a parent. To be a parent is a role; parenting implies a job. It is one thing to be a parent, quite another to parent. “Parenting (or child rearing) is the process of promoting and supporting the physical, emotional, social, and intellectual development of a child from infancy to adulthood. Parenting refers to the aspects of raising a child aside from the biological relationship,” according to the opening sentence of the Wikipedia entry on the subjectRead further down and you will find dreary paragraphs on “parenting styles,” “parenting tools,” “parenting across the lifespan,” and more, alas, altogether too much more.

Under the regime of parenting, raising children became a top priority, an occupation before which all else must yield. The status of children inflated greatly. Much forethought went into giving children those piss-elegant names still turning up everywhere: all those Brandys and Brandons and Bradys; Hunters, Taylors, and Tylers; Coopers, Porters, and Madisons; Britannys, Tiffanys, and Kimberlys; and the rest. Deep thought, long-term plans, and much energy goes into seeing to it that they get into the right colleges. (“Tufts somehow feels right for Ashley, Oberlin for Belmont.”) What happens when they don’t get into the right college, when they in effect fail to repay all the devout attention and care lavished upon them, is another, sadder story.

I began by talking about “fashions” in fatherhood, but I wonder if fashions is the right word. I wonder whether cultural imperatives doesn’t cover the case more precisely....

The culture of the current day calls for fathers to put in quite as much time with their children as mothers once did. In part this is owing to the fact that more and more women with children either need or want to work, and in part because, somehow, it only seems fair. Today if a father does not attend the games of his children, he is delinquent. If a father fails to take a strong hand in his children’s education, he is deficient. If a father does not do all in his power to build up his children’s self-esteem—“Good job, Ian”—he is damnable. If a father does not regularly hug and kiss his children and end all phone calls with “love ya,” he is a monster. These are the dictates of the culture on—shall we call it?—“fathering” in our day, and it is not easy to go up against them; as an active grandparent, I, at least, did not find it easy.

Cultural shifts do not arrive without reason. Kids today, it is with some justice argued, cannot, owing to crime in all big cities, be left alone. They need to be more carefully protected than when I, or even my sons, were children. Getting into decent colleges and secondary and primary schools and, yes, even preschools is not the automatic business it once was. The competition for what is felt to be the best in this realm is furious; thought (and often serious sums of money) must go into it. Children are deemed more vulnerable than was once believed. How else to explain all those learning disabilities, attention deficits, and other confidence-shattering psychological conditions that seem to turn up with such regularity and in such abundance? The world generally has become a more frightening place, and any father with the least conscience will interpose himself between it and his children for as long as possible. One can no longer be merely a parent; one must be—up and at ’em— relentlessly parenting.

As a university teacher I have encountered students brought up under this new, full-time attention regimen. On occasion, I have been amused by the unearned confidence of some of these kids. Part of me—the part Flip Wilson’s debbil controls— used to yearn to let the air out of their self-esteem. How many wretchedly executed student papers have I read, at the bottom of which I wished to write, “F. Too much love in the home.”

Will all the attention now showered on the current generation of children make them smarter, more secure, finer, and nobler human beings? That remains, as the journalists used to say about the outcomes of Latin American revolutions, to be seen. Have the obligations of fathering made men’s lives richer, or have they instead loaded men down with a feeling of hopeless inadequacy, for no man can hope to be the ideal father required in our day? How many men, one wonders, after a weekend of heavily programmed, rigidly regimented fun fathering with the kids, can’t wait to return to the simpler but genuine pleasures of work? Only when the cultural imperative of parenting changes yet again are we likely to know.

May 7, 2015 in DeGirolami, Marc | Permalink

Monday, April 27, 2015

Unde Origo Inde Salus

A wonderfully interesting post on the cultural and religious life of Venice by my colleague and partner in crime, Mark Movsesian. A bit from his post:

I’ve been thinking a great deal about Venice, lately, ever since I visited last month to participate in an international law and religion moot court competition. In its glory, Venice was a city devoted to commerce. Just as in today’s New York, you could find anything for sale. The city pioneered credit-financed capitalism and grew fabulously wealthy on trade with Byzantium and the Levant. And, as Voltaire’s theory would suggest, the Venetian Republic was quite tolerant of religious difference, especially for the time. The city had significant colonies of eastern Christians like Greeks and Armenians; Lutheran Germans; Muslim Turks; and of course Jews. All made fortunes trading peaceably in Venice.

And yet, as I learned, Venice had a compensating commitment to tradition. The city balanced devotion to the fluid world of commerce with an equal devotion to the static world of custom. As Peter Ackroyd explains in his marvelous book, Venice, Pure City (2009), Venice was “the most conservative of societies.” In law and government, ancient usage had preeminent authority, more than positive legislation. Social interactions followed patterns that did not change. For example, strict rules limited what different classes could wear. Patricians wore stiff black gowns, which highlighted gravity and authority, not flexibility and cosmopolitanism. In architecture, generation after generation followed old models. When buildings collapsed, Venetians would reconstruct them exactly as they had been, often using the same materials. Come era, dove era.

And Venice was exceptionally religious. The city’s enthusiastic participation in the Crusades is well known, and was always a matter of great pride. One could dismiss Crusading as a search for more loot, but for Venetians it was more than that. Venetians were genuinely devout, perhaps excessively so. Hundreds of churches shared a very small space; religious processions were numerous and frequent.  Reports of miracles were common; only Rome had more. This is not to say that Venetians were saints. They never lost sight of the main chance. But Catholicism was a centerpiece of their identity. Ackroyd sums it up best: “Machiavelli wrote that ‘we Italians are corrupt and irreligious beyond all others.’ That was not true of the Venetians. They were corrupt and religious.”

See the rest of Mark's post for the meaning of the title of this one.

April 27, 2015 in DeGirolami, Marc | Permalink

Thursday, April 9, 2015

Shiffrin on Progressive Preference for Speech Over Religion

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).

April 9, 2015 in DeGirolami, Marc | Permalink

Wednesday, April 8, 2015

Pioneers and Police: Archetypes in Constitutional Law Scholarship

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.

April 8, 2015 in DeGirolami, Marc | Permalink

Friday, April 3, 2015

Oman Blogging at CLR Forum

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. 

April 3, 2015 in DeGirolami, Marc | Permalink

Thursday, April 2, 2015

Two Items on the State RFRAs Contretemps

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.

April 2, 2015 in DeGirolami, Marc | Permalink

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.


April 1, 2015 in DeGirolami, Marc | Permalink