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).
Monday, March 2, 2015
My colleague, Mark Movsesian, and I have a new podcast up on the Supreme Court oral argument last week in EEOC v. Abercrombie & Fitch. We discuss the background of the case, the Tenth Circuit decision, the oral argument, and then we offer some views about the implications for religious accommodation more broadly and predict the outcome.
Wednesday, February 25, 2015
I am late in posting a notice for this wonderful short piece by Marcel Proust (yes, that one), The Death of Cathedrals, first published in Le Figaro in 1904 and translated for the first time into English (John Pepino). As the introduction explains, the context of Proust's essay was the strict separationism afoot in France in the early 20th century (culminating in the 1905 "Law of Separation"), and in specific what would happen to France's cathedrals under the new secular dispensation. Proust was an Agnostic and in some ways that makes his reflections on the subject all the more interesting. But what is truly fascinating is how completely different his views are from the typical American separationist position. Like from another planet (albeit a perfectly inhabitable one). A bit from the beginning:
Today there is not one socialist endowed with taste who doesn’t deplore the mutilations the Revolution visited upon our cathedrals: so many shattered statues and stained-glass windows! Well: better to ransack a church than to decommission it. As mutilated as a church may be, so long as the Mass is celebrated there, it retains at least some life. Once a church is decommissioned it dies, and though as an historical monument it may be protected from scandalous uses, it is no more than a museum. One may say to churches what Jesus said to His disciples: “Except you eat the flesh of the Son of man, and drink his blood, you shall not have life in you” (Jn 6:54). These somewhat mysterious yet profound words become, with this new usage, an aesthetic and architectural axiom. When the sacrifice of Christ’s flesh and blood, the sacrifice of the Mass, is no longer celebrated in our churches, they will have no life left in them. Catholic liturgy and the architecture and sculpture of our cathedrals form a whole, for they stem from the same symbolism. It is a matter of common knowledge that in the cathedrals there is no sculpture, however secondary it may seem, that does not have its own symbolic value. If the statue of Christ at the Western entrance of the cathedral of Amiens rests on a pedestal of roses, lilies, and vines, it is because Christ said: “I am the rose of Saron”; “I am the lily of the valley”; “I am the true vine.”
Monday, February 16, 2015
On February 18, St. John’s University Law School will host a panel, “Threat to Justice: Middle Eastern Christians and the ISIS Crisis,” at the university’s main campus in Queens, New York. The event will be co-sponsored by the Center for Law and Religion and the Catholic Law Students Association. Speakers will include Michael LaCivita (Catholic Near East Welfare Association), Edward Clancy (Aid to the Church in Need) and Mark Wasef (United for a New Egypt). My colleague, Mark Movsesian, will moderate.
The topic of the panel could not be more urgent in light of the near-daily barbarities perpetrated by the Islamic State.
Please join us if you’re in the neighborhood. Details are here.
UPDATE: And do read this excellent article at The Atlantic by Graeme Wood, "What ISIS Really Wants."
Tuesday, February 10, 2015
My friend Sam Bray has a marvelous essay just published in The Green Bag on doctrines that do many things and doctrines that do only one. Here's the beginning of the piece:
Every kitchen has two kinds of tools. Some of these tools do many things well, like a chef’s knife. Other tools do only one thing, but they are meant to do that one thing exceedingly well, like a garlic press. The same distinction appears in legal doctrines. Some doctrines do one thing and are meant to do it very well. Others do many different things. They serve multiple functions, though perhaps all imperfectly. Cooks and cookbook authors debate the relative merits of single- function tools and multi-function tools. So do legal scholars. It often happens that a scholar will criticize a legal doctrine because it serves multiple purposes and is therefore incoherent.
And later, in defense of multipurpose tools:
One [advantage] is about skill. The use of a multi-function tool may be taxing. Yet use can lead to skill, and skill to expertise, and expertise to mastery, a kind of hard-won excellence that is rarely possible with a single-function tool. Perhaps this is why those who are most adept at chopping, dicing, and mincing garlic often deride garlic presses, calling them “ridiculous and pathetic,” even “abominations.” Some disagree. But it does tend to be the case that those who have greater experience and expertise prefer the chef’s knife, while those who have less of each tend to prefer the garlic press. Such tendencies suggest that any assessment of these tools also requires an assessment of the person who wields them: a tool that serves multiple functions can be mastered only by someone who is capable of achieving that mastery. And the same is true for mastering a doctrine that serves multiple functions. A person with skill in granting and fashioning a constructive trust may prefer the more general doctrine, with the possibility that one function will shade slightly into another, without the sharp and artificial choice imposed by the single-function tools. But that sharp and artificial choice may be appealing to one less skilled.
And on how people with distinct roles in the law are drawn to specific sorts of tools:
Nor is it an accident that the critics of multi-function doctrines tend to be scholars, and those who use and defend them tend to be judges. In making the choice between single-function doctrines and multi-function doctrines, the interests of the bench, the bar, and the academy do not align. Judges are generalists. And attorneys are specialists who write for generalists. But scholars are specialists who write for other specialists. Those roles affect the preferences each actor has. A generalist judge might want a smaller number of doctrines, each serving multiple functions – a set of doctrines that can be resorted to again and again, even if each is used in different ways and for different purposes depending on the case. Specialists, especially those who do not write to persuade generalists, may seek an ever greater refinement of the rules, so that each rule fits its function exactly. The evidence is the enthusiasm that so many scholars have shown for critiquing multi-function doctrines and urging their replacement with single-function doctrines. But the bench has resisted this. Judges have shown no interest in these scholarly projects of deconstruction.
In the end, Sam writes, the choice of a tool is one thing, but the choice of what to make for dinner is something else. I quite agree. Why would anybody ever cook with garlic?