Thursday, June 30, 2016
My colleague, Mark Movsesian, has a very interesting essay updating the Henry Adams original. The essay connects in important ways to our Center's Tradition Project at St. John's, the first leg of which will occur this fall. A bit:
Like Adams’s dynamo, too, the Smartphone represents forces essentially destructive of tradition. In the civilization of the dynamo, Adams wrote, people found it impossible to honor or even to understand the claims of the past. In his essay, Adams recalled visiting the cathedral of Amiens with the American sculptor Augustus Saint-Gaudens. Adams noticed that Saint-Gaudens seemed unmoved by the spiritual power of the place—by the power of the Virgin, who had made the cathedral possible. Gibbon had felt the energy of Gothic cathedrals when he visited them in the eighteenth century, and had condemned it; Ruskin had praised it in the nineteenth. But by the twentieth, people no longer felt the energy at all. Saint-Gaudens admired the dignity of the architecture and the beauty of the sculptures, but perceived no meaning in them: “The art remained, but the energy was lost even upon the artist.”
The Smartphone likewise acts as a solvent on tradition, including religious tradition. Tradition depends on community—more precisely, on a community that sees itself as existing through time, an idea that is captured in the Christian tradition by the communion of saints. Such a community has claims on the individual by virtue of the fact that it has existed before him and will continue to exist after him. The individual is not completely submerged in the community; that would be a kind of totalitarianism. But he cannot create an entirely new world for himself, either. He draws his identity though his participation in a pre-existing, and in significant respects unchanging, order.
The Smartphone draws the user out from that sort of community. True, the Smartphone can promote a certain kind of community, a network of contacts who share interests, ideologies, even religious convictions. But it favors ephemeral interactions with strangers. It’s very easy to add people to your Contacts list—and just as easy to remove them and replace them with others. More important, the Smartphone encourages the user to spend his time in a virtual world he has curated all for himself. Not to mention the relentless, rapid updating of information to which the Smartphone has accustomed us. What claims can tradition have in a culture that values immediacy over everything else, and that has come to expect an update every five minutes?
Monday, June 6, 2016
[MOD note: Professor John Inazu has written the following response to Professor Mark Tushnet's three posts about John's new book, Confident Pluralism: Surviving and Thriving Through Deep Difference]
Confident Pluralism, Expressive Association, and “Tone”
Mark Tushnet has a series of posts on Balkinization commenting on my new book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I appreciate Mark’s engagement with the book. And I appreciate the opportunity to offer this response as a guest post on Mirror of Justice.
Before I turn to Mark’s critiques, I’ll briefly situate the main arguments of the book. Confident Pluralism insists that our shared existence is not only possible, but also necessary. Instead of the elusive goal of unity, I suggest a more modest possibility: that we can live together in our “many-ness.” That prescription includes both a legal and a personal dimension. The two are interrelated. Silencing other viewpoints may begin with personal antipathy, but it ends with legal prohibition—a refusal to extend the protections of the law to one’s adversaries, and ultimately, an effort to turn the law against them.
The legal dimension of Confident Pluralism focuses on three areas: (1) protecting the voluntary groups of civil society through the rights of assembly and association; (2) facilitating and enabling dissent, disagreement, and diversity in public forums; and (3) ensuring that generally available government funding is not limited by government orthodoxy. The personal dimension of Confident Pluralism aspires toward tolerance, humility, and patience in three civic practices: (1) our speech; (2) our collective action (including protests, strikes, and boycotts); and (3) our relationships across difference.
Mark’s first post addresses my critique of the Supreme Court’s expressive association doctrine. His second post explores the implications of my constitutional argument for association with the oft-raised but important hypothetical of the racist restaurant. His third post criticizes the “tone” of my civic argument for tolerance, patience, and humility. I’ll comment first on Mark’s third post, which goes much more to the core of the book than his first two posts.
Tolerance, Patience, and Humility
Mark’s third post criticizes what he calls the “tone” of my book. He writes: “Most of [Confident Pluralism’s] argument appears to be directed at intolerant, arrogant, impatient secular liberals—although formally speaking, he addresses intolerant, arrogant, impatient religious conservatives as well.” Mark concludes his post by writing: “Tolerance, patience, and humility are good things, of course, but urging them only on secular liberals is not.”
I think the best response here is to leave it to other readers to decide whether my argument is slanted in the way Mark suggests. My hunch is that most readers, regardless of their ideological priors, will disagree with his characterization.
I do not mean to suggest that I wrote the book from a “view from nowhere.” I have all kinds of personal beliefs that affect how I think and how I see the world. Take, for example, the two most significant constitutional issues that I address in the book: the right of association and the public forum. Most of my views about associational autonomy lean conservative, and most of my views about the public forum (including public protest) lean liberal.
In the chapter focused on speech as a civic practice, my critique of the “hurtful insult” is directed mostly at conservatives and my critique of the “conversation stopper” is directed mostly at liberals (though it is not difficult to think of cross-cutting examples for each of these). And when it comes to the aspirations of tolerance, humility, and patience, I tend to think, and tried to explain, that conservatives are more likely to resist the aspiration of tolerance and liberals are more likely to resist the aspiration of humility—but that both are needed to pursue a more confident pluralism.
Throughout the book, I do my best to name hypocrisy or inconsistency when I see it. For example, when it comes to the expressive nature of for-profit corporations, I express disappointment with both progressives and conservatives: “Many progressives were quick to defend Mozilla’s moral expression (and that of large corporations like Apple in the debate over Indiana’s religious freedom law) but view Hobby Lobby’s claims less favorably. Conversely, conservatives who ardently defended Hobby Lobby were quick to critique Mozilla and Apple. Whatever conclusion we reach as a society about the expressive and moral claims of for-profit corporations, it ought to apply across the ideological spectrum.”
Mark’s post raises some specific examples that emerged mostly after I completed the manuscript. On the subject of recent religious liberty legislation, I agree with Mark that most proposed laws have been neither carefully drafted nor narrowly focused, an argument that I made last fall in an essay coauthored with Michael McConnell and Rick Garnett. With respect to the so-called bathroom laws, I have criticized the North Carolina legislation and I have pushed back on overly dismissive arguments by religious conservatives. I do think, however, that some of the policy implications of transgender laws in other facilities and other circumstances are more complicated than Mark suggests.
Mark assumes a polarized binary between “secular liberals” and “religious conservatives” that I do not adopt in the book. For example, Mark references a story about some hate mail I received after I wrote about protests in Ferguson, Missouri. Mark assumes that the letter came from a “religious conservative.” But nothing in the story hints at the sender’s religious disposition, or whether the sender is liberal or conservative. (Indeed, I know nothing about the sender except for his temperament and his apparent dissatisfaction with my writing.)
I worry that Mark has assumed a “culture wars” mentality that sees only two sides. The shortcoming of that approach is that it forces an alignment of contested issues with ideologies that oversimplifies the views of many if not most people in this country. There are secular liberals and religious conservatives. There are also secular conservatives and religious liberals and all kinds of other combinations in between. And many people hold views on individual issues that, once aggregated, would not fit neatly into any of these labels.
I wrote in the introduction to Confident Pluralism that the goal of the book “is not to settle which views are right and which views are wrong. Rather, it proposes that the future of our democratic experiment requires finding a way to be steadfast in our personal convictions, while also making room for the cacophony that may ensue when others disagree with us.” That goal does not mean we will be able to engage with everyone who disagrees with us. I am unlikely to respond to the person who sent me hate mail. But I do hope to engage meaningfully with many of the people whose paths I cross. That includes colleagues, near and far, many who disagree with me on contested cultural and legal matters.
In the best cases, those encounters allow us to discover common ground in spite of profound disagreement. That is, for example, what I hope my colleague, Marion Crain, and I accomplished in our article “Re-Assembling Labor.” It is also, I trust, why scholars as diverse as Jason Mazzone, Tabatha Abu El-Haj, Ash Bhagwat, Tim Zick, Rob Vischer, and Steve Morrison have taken a renewed interest in the First Amendment’s right of assembly—perhaps because they find common ground in a constitutional principle despite deep differences on other matters.
Let me turn now to some of the more granular doctrinal arguments in Mark’s first two posts, which address my critique of the Court’s expressive association doctrine. (I should note that the section on expressive association in Confident Pluralism summarizes a more extensive argument that I make in my first book, Liberty’s Refuge: The Forgotten Freedom of Assembly.)
Mark defends the Court’s distinction between “expressive” and “non-expressive” associations as one of the “second-order rules whose justification lies in the fact, or hope, that a system implementing those rules will actually achieve better compliance with the first-order norms than a system in which courts attempt to enforce only the first-order norms.”
There are two problems with Mark’s argument. The first is that we have little evidence that the second-order formulation actually parses the first-order norms better than an undifferentiated right of association. The Supreme Court first recognized a right of association in its 1958 decision, NAACP v. Alabama. The doctrine quickly destabilized around the Court’s attempts to distinguish between the NAACP (which it wanted to protect) and the Communist Party of the United States (which it did not want to protect). It is not clear how a second-order formulation would have better honored first-order norms given the Court’s disparate treatment of Communists and civil rights workers.
The Court first introduced the second-order formulation of expressive association (alongside a separate right of “intimate association”) in its 1984 decision, Roberts v. United States Jaycees. Since then, it has held that private civic groups (like the Jaycees) are expressive but unprotected against gender antidiscrimination norms, that the Boy Scouts are expressive and protected against sexual-orientation antidiscrimination norms, and that a skating rink is “non-expressive.” Lower courts have concluded that motorcycle clubs, fraternities, fight clubs, nudist colonies, and other groups are all “non-expressive.”
It’s hard to see how these distinctions hold up. As I argue in the book, the category of non-expressive association “obscures the fact that all associative acts have expressive potential: joining, gathering, speaking, and not speaking can all be expressive.” For this reason, “it becomes very difficult, if not impossible, to police this line apart from the expressive intent of the members of the group. And many groups that might at first blush seem to be non-expressive could in fact articulate an expressive intent.” (I also note in the book, and in an article on Virtual Assembly, that the distinction between expressive and non-expressive becomes even more precarious once we consider its online applications.)
The second problem with Mark’s second-order argument is his assertion that “the Court’s distinction between expressive and non-expressive associations was motivated by a concern that ordinary commercial enterprises would invoke the right to justify policies of racial (and, later, other) discrimination.” I don’t think that’s right. The closest we get to that view is Justice O’Connor’s concurrence in the Jaycees’ case, a view that has never been adopted by a majority of the Court.
Even if Mark were right about the Court’s view, the two second-order formulations are not interchangeable—“commercial” is not an adequate proxy for “non-expressive.” Many commercial associations are “expressive” and some noncommercial associations are “non-expressive.” Hobby Lobby is expressive when it takes a position on birth control, and Delta Airlines is expressive when it threatens to boycott Arizona over the state’s religious freedom legislation. Conversely, both a gay social club and a Christian prayer group arguably fall short of the Court’s definition of “expressiveness,” even though both groups are clearly noncommercial.
One could, of course, adopt a pragmatic distinction between commercial and noncommercial associations. Andy Koppelman has called this view a “neo-libertarian” approach to the right of association, which he attributes to a diverse group of scholars including Michael McConnell, David Bernstein, Dale Carpenter, Richard Epstein, John McGinnis, Michael Paulsen, Nancy Rosenblum, and Seana Shiffrin. I find the distinction insufficient insofar as it leaves open the possibility of powerful monopolies emerging from within the noncommercial category. In Liberty’s Refuge, I propose a line between commercial and noncommercial associations that also accounts for the monopoly situation in the noncommercial context (a position for which Richard Epstein has criticized me).
In short, I agree with Mark about the pragmatic line-drawing; I just don’t think expressive association gets us there. But all of this is a bit beside the point when it comes to Confident Pluralism. The primary claim of the book with respect to the right of association—and the one that I wish Mark had focused on a bit more—is that current doctrine insufficiently protects the private groups of civil society—the very groups that we most need to live out confident pluralism.
The Racist Restaurant
Mark’s second post raises the oft-made but important hypothetical of the racist restaurant owner who appeals to the right of expressive association to exclude non-white customers. As I’ve already suggested, my own pragmatic view is that the right of association (or what I prefer to think of as the right of assembly) should not extend to commercial associations. That knocks out the different versions of Mark’s hypothetical, so let me turn to the harder case that I address in the book, the racist private school. Schools present a much harder and more interesting question than restaurants (in the latter example, I agree with Mark that antidiscrimination laws should prevail).
It seems in this instance that courts have made plausible distinctions on the level of social policy. When it comes to race-based discrimination against African Americans in the wake of widespread and damaging practices of the Jim Crow South, the schools have lost. When it comes to any other kind of discrimination (including other forms of race-based discrimination), the schools have typically prevailed. That is not to deny that people suffer real and tangible harms from discrimination on the basis of other characteristics, including gender and sexual orientation (which is one reason that I support a pragmatic line-drawing between commercial and noncommercial associations under which the former would not be protected under the right of association).
The Intended Audience of Confident Pluralism
In closing, I’d like to return to Mark’s third post and clear up one final point: it was never my intention to write to “intolerant, arrogant, impatient secular liberals,” any more than it was my intention to write to intolerant, arrogant, and impatient conservatives. The people who have already made up their minds and demonized “the other side” are unlikely to persuaded by my book, even if they happen to come across it. The people I am trying to reach are those who are predisposed to be more charitable to one another, even in the midst of deep and intractable disagreement. They are the people who are open to reasonable arguments, and willing to listen to different perspectives. To my good fortune, based on my interactions with him, Mark Tushnet is one of them.
Sunday, May 29, 2016
Illinois Law Review Symposium on Substantial Burdens...and a Few Thoughts on the New Accommodation Skepticism
The University of Illinois Law Review has posted a set of essays on the issue of substantial burdens. These essays were meant to coincide with the Supreme Court's Zubik decision, and they did, though the Court did not really oblige in entirely avoiding the substantial burden issue. So much the better. Kudos to Michael Helfand in particular for assembling such a varied little troop. I was pleased to be among them.
My essay, Substantial Burdens Imply Central Beliefs, takes the Brennan-esque view that any society that is amenable to religious accommodation is going to have to involve itself to some extent in evaluating religious claims, brought by religious claimants, that the law imposes upon religious exercise. "Religious" is the key term here. In the end, and once we have taken on the business of "religious" accommodation, there is no avoiding a good bit of church-state entanglement. To render the substantial burden inquiry coherent, we need some concrete, but generous, idea of what religion is. Here the essay briefly considers the systematic nature of religion, and the sense in which courts can only evaluate whether a law imposes a "substantial burden" on religious exercise by recourse to a background of interlocking beliefs and exercise of which the exercise at issue forms one part. Efforts to avoid this type of entanglement, and to segregate civil or secular burdens from religious burdens, are infeasible and, more importantly, miss the very point of religious accommodation--an official acknowledgment of specifically religious reasons (not personal reasons, or financial reasons, or emotional reasons, or some other kind of reasons) for non-compliance with the law. The effort to isolate civil/secular reasons from religious reasons is itself the latest iteration of an old debate in liberal political theory. Here, and with a few examples from the Hobby Lobby case, I argue that it is unsuccessful. It fundamentally misunderstands the religious dimension of the objection. It mistakes a claimant's money for its principles.
This is the first of two projects I've been working on concerning what I am calling the new accommodation skepticism. Over the last few years, religious accommodation has come under fire from those who are largely indifferent, unsympathetic, or hostile to religion--particularly organized religion, and most particularly Christianity. But there is a new, emerging skepticism from other quarters--from those who are sympathetic to religion and may themselves even be religious believers. Such skepticism is not opposition to accommodation full stop. But it does observe some of the ways in which the regime of religious accommodation prevalent since the 1960s has had profound, and profoundly non-neutral, and indeed often profoundly regrettable, effects on the American legal conception of religion, a conception that is achieving ever-greater salience in the so-called "Rise of the Nones" and other contemporary religious phenomena.
Tuesday, May 24, 2016
I’m delighted to post this notice for a new book of essays by my old master, Kent Greenawalt: From the Bottom Up: Selected Essays. These previously published and newly collected essays span Kent’s writing life and do an excellent job of conveying his immense and broad erudition. They cover topics including the bases of law (public reasons, natural law, religious reasons, and so on); law and objectivity; and several subject specific inquiries (in criminal law, law and religion, and speech law).
As a compendious but complete introduction to Kent’s thought, you cannot do better. I was honored to provide this book blurb:
A crucial book for understanding the mind of one of the great legal scholars of our time. Kent Greenawalt’s core insight, developed over a scholarly life and across several disciplines, is that the law is best understood inductively–not by drawing hard dividing lines between legal concepts and categories but instead by asking careful questions about how the law works itself out in the real world.
Monday, May 16, 2016
Today the Supreme Court issued a short per curiam opinion vacating the circuit courts' respective opinions in the nonprofit contraception mandate cases and remanding them to those circuits, in light of the "substantial clarification and refinement" in the claimants' and the government's respective positions that the Court claims was generated by the supplemental briefing. To wit:
Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company....The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”
Disagreements as to implementation to be worked out below. No taxes or penalties on the claimants during the pendency of the new implementation for failure to provide adequate notice to the government. No opinion expressed on the merits (substantial burden, compelling interest, least restrictive means), other than by Justice Sotomayor, who concurred (joined by Justice Ginsburg) in the Court's order essentially to make crystal clear to the government that she was sympathetic to its views.
Tuesday, May 10, 2016
A new meme that came to me when reading this story at Volokh about the American Bar Association’s new proposed rule concerning, inter alia, professional misconduct sanctions for lawyers who engage in “verbal conduct” (which sounds rather like speech) that “manifests bias or prejudice” or is “derogatory or demeaning” on matters related to “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” The proposed rule applies to the “practice of law,” which includes “participating in bar association, business or social activities in connection with the practice of law.”
Eugene Volokh offers some interesting questions of the proposed rule’s application. I’m more interested in the ABA’s changing view of speech–from a traditional liberal view to an anti-liberal view. Haven’t we been lectured time and again by the titans of the bar (not to mention the Supreme Court’s sanctimonious diatribes on the matter) about the value of offensive ideas? About the civic importance of tolerating the expression of those ideas which we reject. Here’s one little refresher: something from Justice Douglas’s opinion in Terminiello v. City of Chicago, though many others would have sufficed:
The vitality of civil and political institutions in our society depends on free discussion….[I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly, a function of free speech under our system of government is to invite dispute….Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.
This sort of view could, of course, be challenged. Is it really true that because Terminiello’s advocacy of fascist ideas and race and class hatred might actually persuade people–might convince them to abandon all of those nasty “prejudices and preconceptions”–that the government is therefore powerless to regulate it? Is it better to be governed by fascist ideas than to regulate the consumer’s taste for them?
Right or wrong, it was ostensibly the liberal view. How different the ABA’s approach today seems to be. But I wonder, in this paper, whether the 20th century approach to freedom, and to free speech in particular, was really ever an end in itself, or instead was a gateway (and was even perceived by some of its proponents as a gateway) from one sort of legal culture to another. The classical liberal position is an attractive one in many ways. It’s a pity that so few people have been, and are, really committed to it. Were they at some point? If so, when did that commitment change, and why? There were those in the legal academy and elsewhere who never purported to be liberal and are now feeling pretty darned good. But classical liberalism, as those who know more than I have observed, seems to be on the ropes. Or was this all part of a larger movement away from one culture and toward another? Were most people plying the liberal view actually (even if unwittingly) #NeverLiberal at all?
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...