April 18, 2014

Smith on "the Jurisprudence of Denigration"

To say "Steven Smith" is to say "must-read".  Check it out.  Here is the abstract:

In his opinion for the Court in United States v. Windsor, Justice Anthony Kennedy asserted that section 3 of the Defense of Marriage Act was unconstitutional because it was enacted from “a bare congressional desire to harm a politically unpopular group,” or from a “purpose...to demean,” “to injure,” and “to disparage.” Kennedy and the Court thereby in essence accused Congress – and, by implication, millions of Americans – of acting from pure malevolence.

Why might distinguished Justices put their names to such an extraordinary accusation? This article explores deficiencies, first, in contemporary constitutional discourse and, second, in contemporary moral discourse. These deficiencies have resulted in a situation in which, in some contexts, the only kind of admissible and potentially persuasive argument is one that attacks the character or motives of one’s opponents. Windsor is a recent and egregious instance of this discursive pattern, or of what we may call the discourse of denigration.

Also of interest will be MOJ-friend Paul Horwitz's reaction and response to Prof. Smith's piece, at Jotwell.

Posted by Rick Garnett on April 18, 2014 at 09:37 PM in Garnett, Rick | Permalink

Kurt Lash on "Religious Sincerity and the Hobby Lobby Investments"

My friend, Prof. Kurt Lash, shared with me (and gave me permission to post) these thoughts:

Although public attention has turned elsewhere, the Supreme Court continues to mull over the question of Hobby Lobby’s religious objection to the contraceptive mandate in the Affordable Care Act. Perhaps with an eye to influencing the Court’s deliberations, recently a number of Hobby Lobby’s critics have pointed to the company’s 401(k) investment program as calling into question the sincerity of their religious objection.  Among the many stocks included in mutual funds made available to Hobby Lobby employees are those of companies manufacturing contraception products.  To Hobby Lobby’s critics, this not only renders the owners hypocrites, it also undermines their claim that the contraception mandate burdens a sincerely held belief.

 It’s a specious argument, one effectively rebutted by others. In brief, it is the manager of the 401(k) program, not the owners of Hobby Lobby, who select the program’s mutual funds--funds that invest in the stock of hundreds (or thousands) of individual companies.  And it is the employees, not the employers, who choose which fund to invest in.  Even the critics concede that it is not likely Hobby Lobby’s owners knew about the activities of every company in every mutual fund offered as a choice to their employees.  There is nothing in this story, in other words, that calls into question the sincerity of Hobby Lobby’s claim.

 But what about going forward?  If the owners do not take affirmative steps to deny employee access to mutual funds that (sometimes) include companies that manufacture contraceptives, doesn’t this call into question the sincerity of their refusal to authorize contraception coverage as mandated by the ACA?  The question involves drawing a line between religiously permitted and forbidden activity, and determining who gets to draw that line.  Should Congress, in passing legislation like the Religious Freedom Restoration Act, protect the beliefs of religious claimants who may identify moral distinctions that their secular fellow-citizens would not?  And should they do so if the result arguably shifts a burden onto third parties? 

The first time we faced this issue as a country, the answer was emphatically yes.  During the Civil War, Congress debated whether to grant an exemption from the military draft for religious objectors.  The exemption would relieve objectors from service but require a payment of $300 “to be applied to the benefit of the sick and wounded soldiers”—a payment religious objectors had signaled Congress they would accept.  Opponents of the exemption argued that the objectors’ willingness to pay the fee called into question the sincerity of their objection to military service.  Although the $300 would be earmarked for the “sick and wounded,” money was fungible and the payment would free up funds to secure a replacement or to purchase weapons.  

The reply, which carried the day, was that religious exemptions must be viewed from the perspective of the individual’s religious conscience.  According to Sen. Doolittle: 

Gentlemen say [providing that the money go to the use of hospitals] makes no difference; they are just as much supporting the war in this way as if they paid the money directly to procure a substitute and place him in the field with arms in his hands. Perhaps you think so; perhaps I think so; but they do not; they draw a distinction; and in legislation we must regard as facts the prejudices and the religious convictions of a people.  

Nor was the issue one of mere political expediency. According to Thaddeus Stevens, “independent of policy ... justice requires [exemption of the religiously scrupulous.]”  In the end, not only was the amendment modified to include non-Christian denominations that conscientiously opposed bearing arms, but the discretionary wording “may” was replaced with “shall” to make the exemption mandatory. 

There are several lessons here that are important to the current debate.  First of all, the religious exemption from military service during the Civil War was the first true national religious exemption.  The exemption was limited to only religious-based objections and granting the exemption had the effect of making it more likely that a non-believer would be forced to serve and risk life and limb.  Nor did it matter that the same objectors were willing to pay a fee that could be viewed as directly advancing the military effort they refused to join.  If the purpose of the exemption was to protect the religious conscience, the moral lines drawn by that conscience were to be respected as well. 

Should the Supreme Court grant Hobby Lobby an exemption under the Religious Freedom Restoration Act, its decision will echo an earlier and far more serious decision to grant a legislative exemption during a time of war.  Then as now, religious adherents drew moral lines in the sand beyond which they could not go.  The country has long understood that respecting those lines is an essential part of respecting religious freedom.

 Kurt T. Lash

 [Note: for citations to the historical material cited above, see Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. L. Rev. 1106 (1994).]


Posted by Rick Garnett on April 18, 2014 at 08:52 PM in Garnett, Rick | Permalink

Yale, "Social Justice", and The Princess Bride

Reading this piece ("Yale's Agony Over Social Justice"), at First Things, made me (of course!) think of this scene, from The Princess Bridge.

Posted by Rick Garnett on April 18, 2014 at 08:31 PM in Garnett, Rick | Permalink

April 15, 2014

"Diversity and Dishonesty"

Ross Douthat expressed well a point that I've wanted to make, and that I think needs to be made, here.  Paraphrasing Peter Westen, it seems increasingly that the idea of "diversity" -- like "inclusive", or "open-minded", etc., etc. -- is, when it comes to views and opinions (I'm not thinking here about diversity in terms of socioeconomic or ethnic background) is not so much "empty" but entirely substantive and loaded.  He writes:

I am (or try to be) a partisan of pluralism, which requires respecting Mozilla’s right to have a C.E.O. whose politics fit the climate of Silicon Valley, and Brandeis’s right to rescind degrees as it sees fit, and Harvard’s freedom to be essentially a two-worldview community, with a campus shared uneasily by progressives and corporate neoliberals, and a small corner reserved for token reactionary cranks.

But this respect is difficult to maintain when these institutions will not admit that this is what is going on. Instead, we have the pretense of universality — the insistence that the post-Eich Mozilla is open to all ideas, the invocations of the “spirit of free expression” from a school that’s kicking a controversial speaker off the stage.

And with the pretense, increasingly, comes a dismissive attitude toward those institutions — mostly religious — that do acknowledge their own dogmas and commitments, and ask for the freedom to embody them and live them out.

It would be a far, far better thing if Harvard and Brandeis and Mozilla would simply say, explicitly, that they are as ideologically progressive as Notre Dame is Catholic or B. Y.U. is Mormon or Chick-fil-A is evangelical, and that they intend to run their institution according to those lights.

His point, I think, is that institutions (including religious hospitals, schools, social-welfare organizations, etc.) are usually not "neutral" when it comes to matters that connect closely with their charism, mission, character, etc.  Nor should they be, or be expected to be.  But, at the same time, they should pretend otherwise.

Posted by Rick Garnett on April 15, 2014 at 02:33 PM in Garnett, Rick | Permalink

April 14, 2014


At First Things, Peter Leithart has a very interesting essay on "micro-Christendoms" called "Rebuilding in the Ruins."  Here is the conclusion:

. . . As the Yoderites and Hauerwasites have been telling us for some time, Christendom is dead. The religious right was its last, long susperation. Though there are millions of Christians in the U.S. and Europe, Christian faith no longer provides the moral compass, the sacred symbolism, or the telos for Western institutions. America’s Protestant establishment has collapsed. Neither evangelical Protestants nor Catholics nor a coalition of the two are poised to replace it. Christian America was real, but, whatever its great virtues and great flaws, it is gone, and the slightly frantic experiments have failed to revive the corpse. It’s past time to issue a death certificate.

That’s a sobering conclusion, and it’s tempting for Christians to slink back to our churches. For innovative, visionary pastors and civic leaders, though, there are hundreds of realistic, locally based, ecumenically charged opportunities to foster experiments in Christian social and political renewal.

Christendom is dead! Long live the micro-Christendoms!


Posted by Rick Garnett on April 14, 2014 at 11:35 AM in Garnett, Rick | Permalink

April 06, 2014

Carozza, "Religious freedom is a human right . . . for family businesses, too"

An excellent piece, here, by my friend and colleague, Paolo Carozza (who is, among other thinks, Director of Notre Dame's Kellogg Institute): 

The Becket Fund for Religious Liberty, which is representing Hobby Lobby and the Green family, has made a number of strong arguments explaining why the government’s extreme position runs afoul of federal civil rights law and the First Amendment. But it not only violates our own laws, it also directly contradicts the most basic principles of international human rights.  As I and many other professors of international law explained in a “friend of the court” brief we submitted to the Supreme Court, international legal norms, and the legal norms of constitutional democracies in Europe and elsewhere, affirm that the exercise of religious liberty has an inherently collective and public character. They reject the notion that there can be no corporate religious freedom and that religious liberty ends where family businesses begin. The government’s position puts us completely at odds with these universally accepted understandings of religious liberty.

Indeed, the federal government’s position runs directly counter to global trends that we ought to welcome. As we point out in our submission to the Supreme Court, other nations and international bodies increasingly emphasize that businesses should not be focused exclusively on profit, but on the real human costs to society of their operations. Corporate social responsibility means that a global business must not have an “every man for himself” attitude, but should instead act in accordance with conscience, taking into account how its actions affect others. Yet in the Hobby Lobby case the government is saying not just that a business doesn’t have a conscience, but that its owners can’t be allowed to run it in accordance with their conscience. That morally laissez-faire approach is a recipe for social disaster, which is why every human rights body in the world to address the issue has pleaded for, not rejected, greater corporate social responsibility.

Posted by Rick Garnett on April 6, 2014 at 01:23 PM in Garnett, Rick | Permalink

April 03, 2014

"Be Not Afraid"

"Be not afraid!"  These were the words with which the heroic soon-to-be St. Pope John Paul II opened his pontificate.  It is an encouraging challenge, and one that -- to me, anyway -- seems very timely.  

Yesterday was the anniversary of his death.  I remember, very clearly, that I was sitting in an auditorium at Indiana University, participating in a conference on the legacy and work of Chief Justice William Rehnquist, when someone interrupted to share the news that the Pope had passed away.  He was, and remains, a hero of mine.

A number of MOJ bloggers contributed reflections on the legacy -- jurisprudential, theological, philosophical, political, etc. -- of Pope John Paul II.  They might be worth re-reading this week (here, here, and here).  And (or), it's really tough to beat Redemptor hominis (here).

Posted by Rick Garnett on April 3, 2014 at 09:16 AM in Garnett, Rick | Permalink

Harvard conference on "Religious Accommodation in the Age of Civil Rights"

Starting tonight, and continuing through Saturday morning, a number of legal scholars -- including our own Tom Berg and I -- will be presenting at a conference, at Harvard Law School, called "Religious Accommodation in the Age of Civil Rights."  Here's the conference blurb:

Current controversies over marriage equality, antidiscrimination law, and the Affordable Care Act’s contraceptive mandate have raised conflicts between religious claims, on one hand, and LGBT equality and women’s rights, on the other. The conference seeks to deepen our understanding of the competing claims by bringing together nationally recognized scholars in the fields of sexuality, gender, and law and religion. 

I am hoping (and praying) for a civil and respectful set of conversations, unclouded and untainted by the unfair and uncharitable characterizations and accusations that have, unfortunately, seemed to dominate discussions about religious exemptions, public-accommodations laws, RFRA, etc., in recent weeks. 

Posted by Rick Garnett on April 3, 2014 at 08:58 AM in Garnett, Rick | Permalink

March 31, 2014

"The Mighty and the Almighty"

On Friday, I had the pleasure and privilege of hosting a roundtable conference sponsored (thanks!) by Notre Dame's Program on Church, State & Society and dedicated to Prof. Nicholas Wolterstorff's (relatively) recent bookThe Mighty and the Almighty:  An Essay in Political Theology, a work that one of the participants characterized as the "first work in analytic political theology."  Prof. Wolterstorff is, of course, both a giant in his fields and a really good guy.  The conference's conversations were engaging and rich, and it was exactly the kind of academic "event" that makes one think there is hope for academic events.  

For someone, like me, who thinks about the church-state nexus primarily as a lawyer and from a perspective strongly shaped by the Catholic social tradition and thinkers like Murray, it was a challenge and a treat to work through the "big questions" with trained philosophers, historians, theologians (and lawyers!) from a variety of religious backgrounds.  Among other things, we considered Wolterstorff's rejection of "perfectionism", of the Gelasian "two rules" model, and of (a version of) the retributive theory of punishment.  And (natch), the group spent a fair bit of time with the whole "are religious institutions more than groups of religious individuals?" question that's been in air quite a bit lately.  

Posted by Rick Garnett on March 31, 2014 at 02:40 PM in Garnett, Rick | Permalink

March 28, 2014

Must-read from Prof. Michael McConnell on the Hobby Lobby case

Here, at the Volokh Conspiracy / Washington Post.  In the piece, Prof. McConnell engages four questions that came up during oral argument and that the justices will likely have on their mind as they meet in conference this morning:

(1) Could Hobby Lobby avoid a substantial burden on its religious exercise by dropping health insurance and paying fines of $2,000 per employee?

(2) Does the government have a compelling interest in protecting the statutory rights of Hobby Lobby’s employees?

(3) Would a ruling in favor of Hobby Lobby give rise to a slippery slope of exemptions from vaccines, minimum wage laws, anti-discrimination laws, and the like?

(4) Has the government satisfied the least restrictive means test?

Prof. McConnell explains why the answer to each of these questions is "no."

Posted by Rick Garnett on March 28, 2014 at 08:19 AM in Garnett, Rick | Permalink