Monday, July 21, 2014
This morning I posted Jameson Doig's opening salvo in the debate on marriage that he and I are conducting this week at Public Discourse. Here is my reply:
Each of us was given 2500 words for our opening contributions. On Wednesday, Professor Doig will reply to my reply. On Thursday, I will complete round two with a reply to his reply to me. For this round, each of us will have 1500 words. On Friday, we will post a joint essay reviewing our debate.
For interested readers who have not yet read Professor Doig's opening contribution, here is the link. (Since I am replying to him, it makes sense to read his contribution first.)
July 21, 2014 | Permalink
I've got a review of Steve's book over at The University Bookman. A bit from the beginning:
In legal scholarship, as in any literature, style matters as much as content. The subjects authors explore, their manners and patterns of thought, the metaphors and idioms they select, the grace with which they address the audience and carry it along—in sum, the personal qualities that emerge in the telling of the tale—are remembered long after the details of the argument have faded. Over the duration of a scholarly life, a writer constructs a personality. And as the relationship of author and reader matures across the years, the publication of a new piece is the occasion to look not so much for argumentative roundhouse punches that could have been thrown anywhere by anybody, as for an old friend.
This is the way I come to the work of Steven D. Smith, the most penetrating and thoughtful scholar of religious freedom of our generation, and that rare author in American legal academia whom it is a joy to read. His new book, The Rise and Decline of American Religious Freedom, represents a distinctively and recognizably Smith-esque contribution. His authorial method has always been primarily diagnostic: he describes the existing legal and historical landscape, and in so doing brings a particular critical perspective that generally runs more or less against the current. Toward the conclusion of his work, Smith often gestures toward several possible resolutions to the problems he has discussed, but they are rarely more than that: soft speculations, almost afterthoughts, about a few pathways out of the forest. But the heart of a Steve Smith book is in the careful exposition of a problem. He has cultivated this method over the years with consistent, wry panache to great effect—whether the subject is the healthful absence of a single theory of the religion clauses of the First Amendment, or the contemporary obsession with the value of equality, or the unsustainable claims about the “reason” that inheres in constitutional law and scholarship. Always, Smith offers an alternative historical and doctrinal description. Always, he hints suggestively at contrarian possibilities and ends. Always, the leitmotivs are skepticism and decline.
This week, Public Discourse, the on-line journal of the Witherspoon Institute edited by the redoubtable Ryan Anderson, will be featuring a debate on the nature of marriage between me and my longtime Princeton colleague Jameson Doig. Professor Doig's opening salvo appears today:
I reply tomorrow, followed by Professor Doig's reply to my reply on Wednesday and my reply to his reply to my reply to him on Thursday. On Friday, we will post a joint statement summing up our points of agreement and disagreement and commenting on the state of the debate about marriage more broadly.
July 21, 2014 | Permalink
Sunday, July 20, 2014
In The Atlantic, Molly Ball describes how some advocates for gay rights fear that the intensifying opposition to religious exemptions among other proponents will push back the passage of the Employment Non-Discrimination Act, the major piece of gay-rights legislation in Congress. Legislation with protective accommodations remains an essential strategy for giving respect to both sides in a genuinely pluralistic society.
I am crushed by the news of Dan's death. I got to know Dan pretty well over the last five years, espcially since Dan began to spend a good chunk of his time in New York. We both write in criminal law theory (Dan more, and better, than I), we have collaborated together on a book project about retributivism, and I participated from time to time in the criminal law theory workshop that he put together up here. He was always organizing, building, and bringing together. He was an impresario as well as a fine scholar. But when he was here in New York, we'd often find time to get breakfast alone together--just the two of us, whether down in Brooklyn (his preference) or in Manhattan (mine). Our last breakfast was in late June.
Dan was one of the leading lights of the new retributivism that sprang to life in the late 1980s and 1990s. This new retributivism often takes some of its inspiration from the work of Herbert Morris as well as the political liberalism of Rawls. There are many versions of retributivism, but Dan's built particularly on the Morrisonian foundation to conceive what he called 'the confrontational conception of retributivism.' Together and in conversation with such formidable minds as R.A. Duff and others, Dan conceived retributivism in condemnatory but also deeply humane and offender-centric terms. Retributive punishment was justified in part because in condemning the offender, it communicated respect for the offender's autonomous choices. What was key in his conception was the communication of condemnation with the intent that the recipient of the condemnation understand that condemnation (even if the recipient rejected it), and that the communication is performed in such a way that the recipient can make sense of it through his free will. You may notice a number of assumptions, including a robust notion of free will, which exist in such a conception of punishment. Dan always defended the free will of the offender fiercely against attacks coming from deterministic angles. And he defended the "intrinsic goodness" of retributivist punishment, provided that one was beginning from the situation of a society in which laws vindicated by such punishment were reasonable and democratically enacted. He was fond of quoting C.S. Lewis's observation that retribution "plants the flag of truth within the fortress of a rebel soul." Yet retributivist punishment in Dan's view of it was limited: it was a specifically political communication by the state to an offender who was a worthy interlocutor.
For many years, Dan was engaged in profitable exchanges, debates, and defenses of his communicative conception of retributivism. Some challenged his conception on the basis of conceptions of punishment dependent on the suffering of the offender. Some brought new and interesting consequentialist critiques of the CCR. Some challenged Dan's conception of retributivism as political rather than more comprehensively moral. For myself, I have always been more of a fellow traveler with respect to Dan's retributivist project than some. I found his views very appealing. But I often pressed Dan about the difference between expressivism and his CCR, and we had many long and vigorous discussions about precisely where expressivism ends and the sort of communication that he was interested in begins. Against my attacks, he was tenacious in his view that the two were qualitiatively different. The last time we had breakfast, we batted the question around for what must have been at least the 10th time. It was such fun.
Always he was extremely gracious to me and a very important person for my own scholarly development. The very first conference I ever organized--"The Retributivist Tradition and Its Future"--was co-organized by Dan. I half-joked that perhaps the conference should have been called "The Retributivist Tradition *Is* Its Future." He joked back by offering, "The Retributivist Tradition and Its Totally Different Future." Dan was the first person I ever asked to write a promotion letter on my behalf. I believe that my letter was the first such letter he had ever written. When he had a draft, he showed it to me before submitting it because, he said, "intellectual friendship is more important than the niceties of procedure." He urged me to write more in criminal law theory. I urged him to do more in law and religion. And he did do some work in that area as well. Perhaps he would have done more.
I will miss him very much.
Saturday, July 19, 2014
Like so many others, I was devastated to hear the news this afternoon that Dan Markel had suddenly and tragically died. The notice from PrawfsBlawg (which he created) is here. Dan and I were summer associates together in 2001 in the Washington office of O'Melveny & Myers and have been friends ever since. He was a gifted scholar and teacher, of course, but more importantly he was a loyal friend who brought a community together wherever he went. I treasure the time we had together last summer hiking in Colorado and the gatherings at AALS and elsewhere of Dan's many friends. I grieve most for Dan's two little boys and pray for their consolation, somehow. Requiescat in pace.
A civilian passenger plane carrying 290 passengers — men, women, and children — was shot out of the sky by an anti-aircraft missile. The downed flight was a commercial airliner flying a route that had been approved by international aviation authorities.
All 290 passengers on the airliner died. As the news broke, heart-breaking photos of the wreckage soon appeared in the international news media — horrific pictures of dozens of bodies of people of all ages, along with debris of personal effects.
No, I am not here describing this week’s tragic incident in Ukraine involving Malaysian Airlines Flight 17 and killing 298 people. Instead, I am recalling the 1988 shooting down of Iran Air Flight 655 by the U.S.S. Vincennes, which resulted in a nearly identical loss of life. Iran Air Flight 655 carrying 290 passengers had departed from Bandar Abbas International Airport and was traveling to Dubai when it was shot down by an American naval missile system over the Persian Gulf.
To be sure, there are differences between the 1988 Iran Air 655 incident and this week’s Malaysian Airlines Flight 17 incident. The U.S.S. Vincennes had been attacked in the Persian Gulf by Iranian gunboats and was engaged in combat when the radar system picked up an aircraft coming toward the ship from Iran. Notwithstanding the exigent circumstances, however, the difference between a slow-moving Airbus and a supersonic military fighter jet should have been apparent, and the radar crew failed to recognize that the Iran Air flight was climbing at the time and not on an attack path. The United States did take immediate responsibility for the downing of the Iran Air flight and paid compensation to the families of the victims (although the federal government successfully invoked sovereign immunity to defeat tort lawsuits filed in United States courts on behalf of the survivors).
But, at the end of each sad day, nearly 300 innocent men, women, and children died horribly because an insufficiently trained military unit acted rashly on the basis of limited information. Each was the result of an atrocious error by an irresponsible military force. The captain of another U.S. ship present at the time in the Persian Gulf said that the shooting down of Iran Air 655 “marked the horrifying climax” to a pattern of over-aggressive behavior by the commandor of the Vincennes.
Importantly, the lesson is not a new one and this week's tragic loss of Malaysian Airlines Flight 17 shows that it has not yet been learned around the world. Nor was the Iran Air 655 tragedy in 1988 the only other such episode. In 2001, Ukraine military shot down a Russian passenger plane, and in 1983, a Soviet fighter jet destroyed Korean Airlines Flight 007.
We need not make the error of characterizing the Malaysian Airlines Flight 17 episode as “terrorism” to insist that those responsible be held accountable for this episode and that use of military force must be carefully constrained to protect civilians. A “terrorist” deliberately targets civilian populations to provoke fear and chaos in the populace. The intercepted communications between Russian military advisors and pro-Russian separatists in eastern Ukraine make plain that they thought they were shooting down a Ukrainan military transport plane and were shocked to discover that the downed plane was a civilian aircraft, wondering aloud why a civilian airliner was flying in a war zone. Nonetheless, we can rightly deplore this episode as involving criminal negligence—perhaps even the level of recklessness that would qualify as manslaughter under Anglo-American definition of homicide.
A responsible nation should never entrust a military system capable of such mass destruction of innocent life to other than a carefully trained team of regular military professionals and even then should insist that every precaution be in place and hesitancy demanded before such a system is employed. Given that the American military has not repeated that episode in the last quarter-century, that immediate lesson may have been learned in the aftermath of the U.S.S. Vincennes. Today, Russia should immediately withdraw such weapons systems from the rag-tag bunch of militias and criminal gangs that Russia has incited to violence in eastern Ukraine.
We live in a broken world. A violent response to frustrations, even if purportedly limited, too often explodes into far greater atrocities and much greater loss of life than anyone intended at the outset. Those of us who believe that international responsibilities do sometimes call for use of American military force nonetheless should be sobered by an episode such as this and be reminded that our own military too has made such unconscionable mistakes in the past.
Let us all continue to pray for a world in which not only innocents traveling high in the skies but all people may know peace and personal safety. And let us today hold in our hearts and prayers the victims of Malaysian Airlines Flight 17 and their families, including Sacred Heart Sister Philomene Tiernan, a member of the staff at Kincoppal-Rose Bay School, a Catholic girls' school in Sydney who lost her life on that flight, while remembering as well the souls lost 25 years ago in the Persian Gulf on Iran Air 655.
Really, I mean it.
It's tough to keep pace with the monumental, colossal stupidity these days about this case. It would be a full-time job to respond to all of the garbage, and who's got the energy or inclination for that? This poor man aligns the Hobby Lobby Supreme Court majority with ISIS and Boko Haram. The unifying thread--both are anti-American:
The most horrific of the religion-inspired zealots may be Boko Haram in Nigeria. As is well known thanks to a feel-good and largely useless Twitter campaign, 250 girls were kidnapped by these gangsters for the crime of attending school. Boko Haram’s God tells them to sell the girls into slavery....
Violent Buddhist mobs (yes, it sounds oxymoronic) are responsible for a spate of recent attacks against Muslims in Myanmar and Sri Lanka, leaving more than 200 dead and close to 150,000 homeless. The clashes prompted the Dalai Lama to make an urgent appeal to end the bloodshed. “Buddha preaches love and compassion,” he said.
The problem is that people of faith often become fanatics of faith. Reason and force are useless against aspiring martyrs.
In the United States, God is on the currency. By brilliant design, though, he is not mentioned in the Constitution. The founders were explicit: This country would never formally align God with one political party, or allow someone to use religion to ignore civil laws. At least that was the intent. In this summer of the violent God, five justices on the Supreme Court seem to feel otherwise.
"The founders" certainly were not "explicit" in the Constitution about the points that Egan makes. "Explicit" means "clearly stated." Where are the points Egan makes about the Constitution clearly stated? What "intent" does he refer to? There is lots of evidence that at least some of "the founders" actually would recognize that religion sometimes can provide grounds for viable and cognizable objections to civil laws. Nothing in the Constitution prohibits such a recognition. And I daresay that "the founders" would rise up in unison to shout down the abject fool who lumped together organizations that kidnap, torture, and kill people with a court of law that, agree or disagree with its decision, does its best to interpret the law. There are many times when I disagree with the Supreme Court's decisions as to fundamental questions. But I recognize that those are legal disagreements. Cannot Egan do the same? In what way did "five members of the Supreme Court" align themselves with a "violent God" by ruling as they did, rather than simply issue a decision with which Egan disagrees?
I do regret posting this sort of irritated item right after Kevin's admirable post. But where is there to go with such talk? What is there left to say?
Friday, July 18, 2014
Dinner with opposing counsel, the Annual Law & Religion Roundtable, and the Libertas workshop on religious freedom
The St. Thomas More Society in Richmond held a belated celebration of our patron's feast day (June 22) this morning. Bishop DiLorenzo celebrated Mass and we had a nice breakfast together afterwards. Among other benefits, this provided the opportunity to catch up with a former student who is practicing in Richmond and enjoying it. We ended up talking a bit about professionalism and about his generally (but not uniformly) positive experience in dealing with opposing counsel. He relayed what he had heard recently about the practice of a greatly respected lawyer at the beginning of cases. This lawyer (a litigator) makes it a practice at the outset of a big case of extending a dinner invitation to opposing counsel (expenses paid by the inviter if acceptable to invitee) at the place of opposing counsel's choice, with the only condition being that they not discuss the case. The idea is that it is easier to treat each other with respect and professionalism if we know each other as human beings and not just as opposing counsel.
The insight behind this practice is on my mind as I reflect on the Annual Law & Religion Roundtable (previously discussed by Rick and Michael Moreland) and the Libertas workshop on religious freedom (previously discussed by Marc and Michael Scaperlanda). For me, a valuable aspect of both conferences was the opportunity to get to know law professors and others with an interest in law and religion on a more personal level. I am grateful for the substantive engagement, analysis, and insight, as well. But personal interactions supply something that no amount of reading and writing and solitary thinking can.
Some of those I met or had the opportunity to renew acquaintance with are people with whom I have disagreed, presently disagree, or will at some point in the future disagree, maybe even deeply, on substantive matters of law and political morality; I hope our time together had something of the effect aimed for by the wise lawyer who dines with opposing counsel at the outset of an engagement. There were also some old friends and other fellow travelers; it was good to reconnect in person. And others fit in neither category, such that the best part was meeting for the first time.
There were different kinds of ideological diversity at each gathering. The differences at ALRR were more ideological than disciplinary, while the differences at Libertas were more disciplinary than ideological. At both there was a kind of unease and sense that things are not going very well, though the reasons why varied among participants. I hope to say more about the content of what was discussed, which was often rich and challenging. For the moment, however, I will stick with expressing gratitude to the organizers of and participants in both gatherings--particularly the organizers. I hope that organizers and participants alike find future gatherings worthwhile, notwithstanding the strong polarizing forces at work and currents of distrust seemingly causing separation and distance.
The National Journal profiles/interviews Richard Land, who was formerly head of the Southern Baptist ethics and policy shop in DC and a leader among social-conservative activists. It's a very interesting exploration of Land's career and the uncertain future for conservative evangelicals in the social/political sphere.