Friday, October 20, 2017
From "The Quest for Community" 66 (1953):
The fantastic romanticism that now surrounds courtship and marriage in our culture is drawn in part no doubt from larger contexts of romanticism in modern history and is efficiently supported by the discovery of modern retail business that the mass-advertised fact of romance is good for sales. But the lushness of such advertising obviously depends on a previously fertilized soil, and this soil may be seen in large part as the consequence of changes in the relation of the family to the other aspects of the social order. The diminution in the functional significance of the family has been attended by efforts to compensate in the affectional realm of intensified romance. Probably no other age in history has so completely identified (confused, some might say) marriage and romance as has our own. The claim that cultivation of affection is the one remaining serious function of the family is ironically supported by the stupefying amount of effort put into the calculated cultivation of romance, both direct and vicarious. Whether this has made contemporary marriage a more affectionate and devoted relationship is a controversy we need not enter here.
Monday, October 9, 2017
Here's another new paper of mine, On the Uses of anti-Christian Identity Politics. Abstract follows:
This short essay, written for a conference on “Faith, Sexuality, and the Meaning of Freedom” held at Yale Law School in January 2017, briefly explores the emerging phenomenon of anti-Christian identity politics. The essay focuses on one particular legal source of it: a recondite provision of the so-called Treaty of Tripoli of 1796, which states that “the government of the United States is not, in any sense, founded on the Christian religion.” The uses to which the phrase has been put, it turns out, are more important than its confused and obscure historical meaning. In evaluating anti-Christian identity politics in only some of these uses, the essay considers the recent claim by Professor Mark Lilla that contemporary Americans — and American liberals in particular — ought to abandon “the politics of identity” in favor of a politics of shared citizenship.
Lilla is right that identity politics as practiced today have further corroded the commonalities that remain among Americans. Identity politics also render compromise on various culture-war issues more difficult: any policy or legal victory for the opposition, however small, assumes additional symbolic power and must therefore be resisted all the more fiercely. Yet the pathologies of identity politics are only symptoms of a more potent sickness in American political and cultural life. Americans, as citizens, share less and less. They disagree in deepening ways about the nature of the political and moral good, about justice, and about what sort of people they are and aspire to be. In short, identity politics are not the cause of, but a response to, political and cultural fragmentation. And anti-Christian identity politics, like Christian identity politics, represent one strain of that response — one ostensible point of rendezvous for a nation whose people are increasingly disaffected with and alienated from one another.
Here's a new paper of mine, The Two Separations. And here's the abstract:
There is nothing self-evidently attractive about separation — whether of church and state or anything else — as a model for individual or collective life. Pursuing separation is not like pursuing knowledge or friendship — ends that are intrinsically good. Separation must be justified by some contingent reason. Though the Constitution speaks of the free exercise of “religion” and “religion’s” non-establishment, much of the confusion about separation as an American civic ideal results from a failure to focus on the specifically historical and contingent justifications for it. These justifications concern not “religion” in general or in the abstract but Christianity in specific — Christianity being, as a historical and cultural matter, the central religious tradition of the United States.
These historical justifications have taken two cardinal forms. The first concerns the politico-theological benefits that are believed to devolve onto Christian churches, or onto Christian believers, from division from the state, and the general social and political advantages derived therefrom. The second involves the secular benefits to the liberal democratic state of unbreachable barriers against the civic and cultural influence of Christianity. The first justification is more ancient, but the second is more powerful today. The first is oriented positively, and the second negatively, toward the cultural and political value of Christianity in the United States. The first sees Christianity as precious. The second sees it as irrelevant or even obnoxious.
This chapter distinguishes and explores the two separations — separation as a specifically Christian piece of political theology, in large part for the benefit of a Christian civil society; and separation as a specifically secular position for the benefit of a liberal society that wishes to divest from and repudiate Christianity. It then describes the allure of equality and nondiscrimination as church-state ideals, their ascendancy in late twentieth century constitutional law, and the sense in which they are believed to have supplanted separation.
But neither equality nor nondiscrimination delivers what it promises: a valueless perspective on the social and political worth of Christianity. In fact, their perspective is decidedly negative. The chapter explains this claim by comparing the use of these principles in the contexts of race and sex discrimination, where the overriding assumption is that race and sex are fundamentally irrelevant considerations, and obnoxious and illegitimate bases on which to make laws and to order society. Transposed to the context of religion — and, as this chapter argues, the transposition in reality concerns Christianity specifically — a similar assumption holds: that Christianity is fundamentally an irrelevant, or even an obnoxious, and illegitimate, influence in the making of laws or the structuring of the cultural and political realms. Indeed, in a society in which Christianity has had such overwhelming predominance, insisting on equality is tantamount to squelching it. This view is not neutral as to the value of Christianity in contemporary American politics and society. It is nothing less than an expression of the second separation.
Wednesday, September 13, 2017
Kevin Walsh and I have the annual Supreme Court Roundup at First Things, A Less Corrupt Term. In it we look back at some of the cases from last term and forward too. The range of cases looking back span the Obergefell-inflected genre, free speech (Packingham and Matal), law and religion (the church plan case and Trinity Lutheran), and Trump v. IRAP. We also discuss the political gerrymandering case on the upcoming docket (Gill v. Whitford) as well as Masterpiece Cakeshop. Here is a bit from the beginning:
In these unusually turbulent times for the presidency and Congress, the Supreme Court’s latest term stands out for its lack of drama. There were no 5–4 end-of-the-term cases that mesmerized the nation. There were no blockbuster decisions.
Even so, the Court was hardly immune to the steady transformation of our governing institutions into reality TV shows. Over the weekend leading into the final day of the term, speculation ignited from who-knows-where about the possible departure of its main character, Justice Anthony Kennedy. To us, the chatter seemed forced—as if the viewing public needed something to fill the vacuum left by a season of episodes with fewer sex scenes and less louche intrigue than usual.
But the scriptwriters did not disappoint entirely. In the season finale, the justices delivered split opinions in two cases that had not even been fully briefed and argued on the merits—one about President Trump’s limits on immigration from six majority-Muslim nations, the other about the right of a female same-sex spouse to be listed as a parent on a birth certificate alongside the birth mother. These opinions hint at some of the stories that will shape next year’s plotline—the first full term for the new character, Justice Neil Gorsuch.
And the producers promise a thrilling new season. For readers of this journal, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is likely to be the most prominent case, one about the freedom of a Christian baker to decline to design a custom cake for a same-sex wedding celebration. Other potential showstoppers include a case about partisan gerrymandering and another round on President Trump’s executive order on immigration. We may also see more shake-ups in the cast. Before peering ahead to what may be coming, though, we look back at some of the signal events of the past term.
Saturday, August 19, 2017
In my Introduction to Law case, I assign Lon Fuller's wonderful "The Case of the Speluncean Explorers." I just realized that Judge Tatting's opinion contains the following paragraph in his case against purposivist statutory interpretation. Is it convincing? Victor Hugo probably would not think so.
But what are we to do with one of the landmarks of our jurisprudence, which again my brother passes over in silence? This is Commonwealth v. Valjean. Though the case is somewhat obscurely reported, it appears that the defendant was indicted for the larceny of a loaf of bread, and offered as a defense that he was in a condition approaching starvation. The court refused to accept this defense. If hunger cannot justify the theft of wholesome and natural food, how can it justify the killing and eating of a man? Again, if we look at the thing in terms of deterrence, is it likely that a man will starve to death to avoid a jail sentence for the theft of a loaf of bread? My brother's demonstrations would compel us to overrule Commonwealth v. Valjean, and many other precedents that have been built on that case.
"Drive Like Your Kids Live Here." It's just fantastic. I like to think of it as emphasizing the word "Your." I suppose the assumption, born from hard experience I am sure, is that people drive recklessly in neighborhoods with homes in which children live. What could possibly impress upon these reckless drivers to drive a little slower, a little more carefully?
I've got it. Try to get these people to think about how they would drive if their own children's lives were at risk. After all, people only really care about the safety and well being of their own children. What difference does it make if I put my neighbor's children at risk? I don't care at all about them--certainly not enough to drive safely and responsibly. But my kids. That's different. I actually would be sorry if something happened to them and I was at fault.
What a hopeful portent of the strength of American community.
Sunday, August 6, 2017
A wonderful set of observations from Victor Hugo on the importance of places and spaces of affection in the memory of one's homeland (Les Miserables, Cosette, Book V, Chapter 1):
The author of this book, who regrets the necessity of mentioning himself, has been absent from Paris for many years. Paris has been transformed since he quitted it. A new city has arisen, which is, after a fashion, unknown to him. There is no need for him to say that he loves Paris: Paris is his mind’s natal city. In consequence of demolitions and reconstructions, the Paris of his youth, that Paris which he bore away religiously in his memory, is now a Paris of days gone by. He must be permitted to speak of that Paris as though it still existed. It is possible that when the author conducts his readers to a spot and says, ‘In such a street there stands such and such a house,’ neither street nor house will any longer exist in that locality. Readers may verify the facts if they care to take the trouble. For his own part, he is unacquainted with the new Paris, and he writes with the old Paris before his eyes in an illusion which is precious to him.
It is a delight to him to dream that there still lingers behind him something of that which he beheld when he was in his own country, and that all has not vanished. So long as you go and come in your native land, you imagine that those streets are a matter of indifference to you; that those windows, those roofs, and those doors are nothing to you; that those walls are strangers to you; that those trees are merely the first encountered haphazard; that those houses, which you do not enter, are useless to you; that the pavements which you tread are merely stones. Later on, when you are no longer there, you perceive that the streets are dear to you; that you miss those roofs, those doors; and that those walls are necessary to you, those trees are well beloved by you; that you entered those houses which you never entered, every day, and that you have left a part of your heart, of your blood, of your soul, in those pavements. All those places which you no longer behold, which you may never behold again, perchance, and whose memory you have cherished, take on a melancholy charm, recur to your mind with the melancholy of an apparition, make the holy land visible to you, and are, so to speak, the very form of France, and you love them; and you call them up as they are, as they were, and you persist in this, and you will submit to no change: for you are attached to the figure of your fatherland as to the face of your mother.
May we, then, be permitted to speak of the past in the present? That said, we beg the reader to take note of it, and we continue.
Friday, July 14, 2017
Today is Bastille Day, and it would not be right to let it go unhonored here at Mirror of Justice. Here is my contribution:
something from that titan of France now well ensconced in the Pantheon, Victor Hugo. If you do not know Les Miserables (the novel, of course, not the musical), you must give it a try. It's a rare and true pleasure to read.
It may perhaps come as a surprise that the first book of Les Miserables, "A Just Man," is almost entirely devoted to describing a bishop--Bishop Bienvenu Myriel. It may be even more surprising that this portrait, by that grand homme de la patrie, is not merely flattering but reverential. Yes, Hugo saves many sharp elbows for the clerisy. Yes, he has a rather pantheistic conception of Christianity. But it seems churlish today to dwell on these matters. And it should not go unnoticed that this masterpiece of the French Revolution and post-Revolutionary France leads its charge in praise of a cleric--a good and just man. It is, in its way, a deeply religious novel.
Here is something toward the end of the Book 1, Chapter 14 ("What He Thought"). Happy Bastille Day.
Human meditation has no limits. At its own risk and peril, it analyzes and digs deep into its own bedazzlement. One might almost say, that by a sort of splendid reaction, it dazzles nature; the mysterious world which surrounds us renders back what it has received; it is probable that the contemplators are contemplated. However that may be, there are on earth men who—are they men?—perceive distinctly at the verge of the horizons of reverie the heights of the absolute, and who have the terrible vision of the infinite mountain. Monseigneur Bienvenu was not one of these men; Monseigneur Welcome was not a genius. He would have feared those sublimities whence some very great men even, like Swedenborg and Pascal, have slipped into insanity. Certainly, these powerful reveries have their moral utility, and by these arduous paths one approaches to ideal perfection. As for him, he took the path which shortens,—the Gospel’s.
He did not attempt to impart to his chasuble the folds of Elijah’s mantle; he projected no ray of future upon the dark groundswell of events; he did not see to condense in flame the light of things; he had nothing of the prophet and nothing of the magician about him. This humble soul loved, and that was all.
That he carried prayer to the pitch of a superhuman aspiration is probable: but one can no more pray too much than one can love too much; and if it is a heresy to pray beyond the texts, Saint Theresa and Saint Jerome would be heretics.
He inclined towards all that groans and all that expiates. The universe appeared to him like an immense malady; everywhere he felt fever, everywhere he heard the sound of suffering, and, without seeking to solve the enigma, he strove to dress the wound. The terrible spectacle of created things developed tenderness in him; he was occupied only in finding for himself, and in inspiring others with the best way to compassionate and relieve. That which exists was for this good and rare priest a permanent subject of sadness which sought consolation.
There are men who toil at extracting gold; he toiled at the extraction of pity. Universal misery was his mine. The sadness which reigned everywhere was but an excuse for unfailing kindness. Love each other; he declared this to be complete, desired nothing further, and that was the whole of his doctrine. One day, that man who believed himself to be a “philosopher,” the senator who has already been alluded to, said to the Bishop: “Just survey the spectacle of the world: all war against all; the strongest has the most wit. Your love each other is nonsense.”—“Well,” replied Monseigneur Bienvenu, without contesting the point, “if it is nonsense, the soul should shut itself up in it, as the pearl in the oyster.” Thus he shut himself up, he lived there, he was absolutely satisfied with it, leaving on one side the prodigious questions which attract and terrify, the fathomless perspectives of abstraction, the precipices of metaphysics—all those profundities which converge, for the apostle in God, for the atheist in nothingness; destiny, good and evil, the way of being against being, the conscience of man, the thoughtful somnambulism of the animal, the transformation in death, the recapitulation of existences which the tomb contains, the incomprehensible grafting of successive loves on the persistent I, the essence, the substance, the Nile, and the Ens, the soul, nature, liberty, necessity; perpendicular problems, sinister obscurities, where lean the gigantic archangels of the human mind; formidable abysses, which Lucretius, Manou, Saint Paul, Dante, contemplate with eyes flashing lightning, which seems by its steady gaze on the infinite to cause stars to blaze forth there.
Monseigneur Bienvenu was simply a man who took note of the exterior of mysterious questions without scrutinizing them, and without troubling his own mind with them, and who cherished in his own soul a grave respect for darkness.
Tuesday, July 11, 2017
Just a couple of items to flag for readers.
First, have a read of Paul Horwitz's well crafted review of John Inazu's book, Confident Pluralism. I was particularly interested to see Paul's steps toward a defense of the positive virtue of pluralism (as opposed simply to its observation as a social fact to be managed). This is, at least for me, a difficult step to take with respect to pluralism: in my own work, I incline much more toward the "fact of pluralism" side of things. But Paul and, of course, John, are making the case with their usual panache.
Second, my colleague Mark Movsesian and I have recorded a podcast wrapping up 3 major law and religion cases either decided by the Supreme Court or on for decision next fall. Hope you have a listen.
Monday, June 26, 2017
Trinity Lutheran Church has just come down, and Tom has a nice summary and set of good comments below. I agree with much of what he says, though I have a different sense of the considerable staying power of separationism than he does. More on that in the coming months.
For now, here's one thought: this case concerned Missouri's Blaine Amendment, which is quoted in full by the Court. Many states have similar amendments, enacted frequently sometime after the failure of James G. Blaine's proposed federal constitutional amendment. The Blaine Amendments are the subject of great controversy in legal scholarship because of the anti-Catholicism that has been shown to have motivated them--the "animus" in the conventional argot. Some scholars believe that this motivational evidence is overblown. Others believe that even if the evidence exists, these provisions can be justified today on "neutral" grounds, or grounds of public reason liberalism, or some such grounds. Discussion about the Blaine Amendments' tainted genesis--their anti-Catholic animus--has been on the law and religion scholarly agenda for years. And in Locke v. Davey, the opinion of CJ Rehnquist for the Court focused very much on animus issues (Justice Scalia, in his dissent, disputed that animus was relevant, insisting instead that what the law did was relevant). In Mitchell v. Helms, another funding case where the challenge was on Establishment Clause grounds, Justice Thomas devoted a chunk of his plurality opinion to disavowing the claim that aid to "sectarian" schools is justified on Establishment Clause grounds as tainted by wicked animus:
Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow....Although the dissent professes concern for “the implied exclusion of the less favored,” the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870's with Congress' consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”
Mitchell did not involve a state Blaine Amendment. Trinity Lutheran did. And yet you will search in vain for any reference to Blaine Amendments, the constitutional history of the period, "animus" analysis (or even the word "animus"), the motivation of those who excluded Trinity Lutheran from the funds at issue, or indeed any inquiry as to motivation. The focus is squarely on what the law did here, in this case, seemingly for this day only. In classic Roberts style, it is exquisitely minimalist. Just like Hosanna-Tabor, it goes in for hyper-particularism. This is why I very much agree with Tom's point # 3 below. Indeed, the Chief's opinion is taken to task by Justice Gorsuch for being insufficiently "principled." Justice Gorsuch would have preferred a decision more maximal in nature.
But quite apart from the scope of the decision, nobody, but nobody, went in for deep dives into motivational inquiry in this case. It will be interesting to see just how that methodological preference works itself out in future disputes.