Sunday, July 12, 2015
“Discrimination,” we believe, is wrong. And, because “discrimination” is wrong, we believe that governments like ours – secular, liberal, constitutional governments – may, and should, take regulatory and other steps to prevent, discourage, and denounce it. However, it is not true that “discrimination” is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it even when it is. Some wrongs are beyond the authorized reach of government policy; some are too difficult or costly to identify, let alone regulate; others are none of the government’s business.
When we say that “discrimination” is wrong, what we actually mean is that wrongful discrimination is wrong, and when we affirm that governments should oppose it we mean that governments should oppose it when it makes sense, all things considered, and when it is within their constitutionally and morally limited powers to do so. To label a decision or action “discrimination” is simply to note that one factor or another was or will be taken into account in the course of a decision; it is to invite, but not at all to answer, the questions whether that decision or action was or would be wrong, and whether the public authority may or should forbid or discourage it.
The important enterprise of respecting and protecting religious freedom in and through law is closely related, in several ways, to the also-important enterprise of deploying public power to identify, regulate, and discourage wrongful discrimination. It is suggested in this chapter the rhetorical, moral, and legal power of the antidiscrimination norm can sometimes distort or distract our thinking about how we do and should protect religious freedom through law. This is because the near-universal, if sometimes unreflective, conviction that “discrimination” is wrong means that assertions of religious freedom are sometimes heard as requests that the political authorities tolerate a wrong – i.e., “discrimination” – which they would otherwise prohibit, penalize, or discourage. Such requests then raise the question whether it is “worth it” for the authorities to do so – that is, whether doing so would complicate too much the government’s own projects or conflict too glaringly with its values – and so, when they are granted, accommodations are regarded all around as concessions. Sometimes, to be sure, we do and probably should think about legal rights as protecting, or simply tolerating, a liberty to do even the wrong thing (so long as the wrong thing is not too wrong). We should not forget, though, that a dimension of the freedom of religion is, sometimes, precisely the freedom to “discriminate,” and that this freedom should be protected not simply because such discrimination is an all-things-considered tolerable wrong – sometimes it is, sometimes it isn’t – but because it is inextricably tied to a human right and is, sometimes, beyond political authorities’ legitimate reach.
A family friend -- who is 12 -- shared this letter with me, and gave me permission to put it on MOJ. Wow. She sets the bar high . . . for all of us!
Dear Planned Parenthood,
My name is ____. I am 12 years old and heard of your organization about a year ago. On your website, I find that it states you are: “Working to keep Wisconsin safe, healthy, and strong.” I feel that this goal is unachievable when you offer abortions. I do not think that taking the life of innocent babies is keeping Wisconsin “safe, healthy,or strong”.
This is a basic human rights issue. We know that it is not right to end the life of someone with a disability because they cannot make decisions themselves and because they are sometimes a burden. It is a similar situation with children who are in the womb. They cannot fend for themselves, and with your organization’s help, you unjustly take the child’s life by abortion.
Lots of people, including your organization, argue that “A baby is not a baby until after the first trimester.” My mom recently just lost a baby in the first trimester of her pregnancy, that child was a human. I could see him growing every day and my smile was brought out at each ultrasound. There I could see that child, that human, that gift. We are all made out of “cells and DNA.” Because someone is growing, should we just end their lives? I recently encountered a woman who told me that my miscarried sibling was “just a clump of cells that died”. We are all a clump of cells. Adults are just a larger clump than a fetus in the womb. Should we treat somebody different because they look different; should we just end their life?
Our world is not focusing enough on the gift of life. Instead, we are putting one person’s life value, the mother, above that of her unborn child. We take great measures to ensure that those we can hear will not be voicing complaints of pain or suffering or inconvenience, but we are unwilling to sacrifice for those voices we cannot hear.
This is exactly what your organization is agreeing with- to keep abortion legal to take the life of somebody that is still growing, like we all are. But in this case, we can’t hear their cries of pain, so we venture to take their life.
I very much agree with helping women so they are healthy, but we should treat the unborn child with the same respect. In most cases only 12% of women have included a physical problem with their health among reasons for having an abortion, but when that does happen we need to balance out the needs of both the woman and the baby equally.
If you wish to achieve the goal to make Wisconsin a safe healthy and strong place then we should get to the root of these issues for reasons Mothers have an abortion instead of ending the life of helpless children. I have a few suggestions that would make your organization a place for lives, not death.First, women need to know that they have a choice; they need to know there are other ways, to let their needs and wants be met. We need to offer this help to these women and children. Instead of offering abortion care, try offering free ultrasounds to let the parents see their little children growing. Instead of telling the woman, “It is not your fault, we understand it interferes with work, school, or other responsibilities,” offer free health care.
Did you know that three out of ten women have an abortion before they are 45? That is at least a million babies’ lives taken by abortion. I understand that women are scared and confused so it is our job to help them know that we can and will support them and their children. There are organizations already working in our community to support women with unplanned pregnancies. These organizations give help by providing baby clothes, cribs, car seats, maternity clothes, baby food, and emotional support.
I know that there are cases where women have had or have relationship issues, or women have been raped. In the case of relationship issues, if the women are scared that their boyfriends or husbands will neglect or abuse them, then we need to assure that they are safe. In the case that they were raped, we need support them and guide them to the right choice, the safe choice, the choice of life. Now I know that you are a medical office and are unable to fix many of these problems, but knowing that you could save at least 327,000 babies, a year is great in itself.
I know that your organization is trying very hard to keep women safe and people say that women will have an abortion whether or not it is legal, so just keep it safe and legal. We have laws to keep people safe. We have the law of no robbing. Should we just make it legal because people are going to rob another whether or not it is legal?
The Universal Declaration of Human Rights, states that “everyone has the right to life, liberty and security of person.” Is taking the life of an unborn child a right to life? It also states that “everyone has the right to recognition everywhere as a person before the law.” An unborn child is a human, this is breaking a right that these children have. Another principle it states is “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Is it not inhuman to take a child apart by a D&C? That is tearing the child apart, literally, you are taking the child apart while it is alive. Another way you take the child’s life is by a pill that will end the life of an innocent baby, this is very inhumane. Planned Parenthood and other abortion offices are not following the Universal Declaration of Human Rights, and is allowing babies to die every day.
I want to thank you for your time. Please take into consideration of points I have just made. I hope that you can achieve your goal of keeping Wisconsin safe, healthy, and a strong place to live.
Sincerely . . .
Friday, July 10, 2015
I thought to add three quick thoughts to the points in Rick's post below on complicity, dignity harms, and other matters, with which I largely agree (my full response to the points made in the article by Professors Siegel and NeJaime may be found in the article to which Rick kindly links).
First, as to complicity-based claims for religious exemption. The core claim of the paper by Professors Siegel and NeJaime is that the sorts of exemptions requested in Hobby Lobby and several subsequent controversies are "distinctive" in "form and social logic" because of the issue of complicity in the wrongful conduct of others, a feature that was not present in previous religious exemption cases. Professors Siegel and NeJaime do seem at certain places to say that complicity focuses on the wrongful acts of others. But at several other points, they are much more interested in the third party's character than in his conduct. They write, for example, that complicity-based exemption claims are distinctive because they focus on the accomplice's "relationship to the third party," or that such claims are "oriented toward third parties who do not share the claimant’s beliefs about the conduct in question," or that such claims are really about conflicts between the "traditional morality" of the accomplice and the other sort of morality (progressive morality?) of the third party.
This sort of movement from conduct to character is nicely captured in their comments about Thomas v. Review Board. For those that may not remember, Thomas concerned a request for religious accommodation that also was based on an objection dependent on the concept (if not the precise language) of complicity: “Thomas admitted before the referee that he would not object to working for United States Steel or Inland Steel…produc[ing] the raw product necessary for the production of any kind of tank…‘[because I] would not be a direct party to whoever they shipped it to [and] would not be…chargeable in…conscience.” By contrast, working on tank turrets, Thomas believed, would render him a “direct party to”—that is, someone who aided or assisted—those third parties who contributed to the war effort. Professors NeJaime and Siegel purport to distinguish Thomas on the ground that Thomas did not “single out a particular group of citizens as sinning.”
That's both incorrect and irrelevant. It's incorrect because Thomas did single out those citizens to whom weaponry would be shipped and who would use it in ways to which he objected in conscience. And it's irrelevant because it mistakes the relevant issue as character rather than conduct. Singling out the morality or the character traits of third parties makes no difference, since the conduct, not the character, of the third party is what matters for complicity-based claims. Of course, the conflation of conduct and character is a recognizable though deeply regrettable move in many of the sorts of disputes implicating these issues. But, at least historically, accomplice liability (in criminal law, for example, where it is most at home) focuses on the conduct, not character, of the principal in addition to the state of mind of the accomplice (as Rick notes). And Thomas is hardly the only case in the accommodation canon that looks like this. I list some others in the paper.
Second, on dignitary harms, I'd point out the following interesting language in Justice Kennedy's concurrence in Hobby Lobby: "In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts." Liberties conflict in our legal system; do we gain something by noting that dignities conflict as well? Is Kennedy saying that Hobby Lobby could have asserted that the contraception mandate injured its dignity? That seems to be the way he sees its statutory claim. And that injury gives rise to...what? Here the plaintiff was relying on RFRA. Could it have relied on the Due Process Clause? Suppose that in a hypothetical future case (after RFRA is repealed), this sort of dignity claim conflicts with the sort of dignity claim favored by Professors Siegel and NeJaime--a "traditional morality" claim against a "progressive morality" claim. What sort of standard will we use to adjudge such disputes? May one hope against hope that the Supreme Court will forebear from constitutionalizing the true foundations of human nature and identity?
Third, suppose we were to constitutionalize dignitary harm in the way advocated here and elsewhere. And suppose we were to do so after the fashion sometimes advocated by third-party-harm scholars. We could say, for example, that religious accommodations that impose dignitary harms on third parties (substantial, or important, or material, harms, to be sure) violate the Establishment Clause. I wonder what then happens to the Establishment Clause grounds for the ministerial exception. Does the Establishment Clause cannibalize itself? As I say in the paper, I bet Cheryl Perich and many other plaintiffs who are losers in ministerial exception cases suffer quite significant dignitary harms. They are surely judged, stigmatized, demeaned, and injured in all sorts of ways (quite unpleasant ways in Ms. Perich's case). Is that kind of substantial dignitary injury, which could now be protected by the Establishment Clause, a new limit on the scope of the ministerial exception?
The extremely productive group of law-and-religion scholars, my friends Nelson Tebbe, Rich Schragger, and Micah Schwartzman, published a piece a few days ago on the Religion and Politics site called "Obergefell and the End of Religious Reasons for Lawmaking." They say, among other things, that:
The most significant impact of the Obergefell decision for the relationship between religion and government is that it put an end to lawmaking solely on the basis of religious reasons. - See more at: http://religionandpolitics.org/2015/06/29/obergefell-and-the-end-of-religious-reasons-for-lawmaking/#sthash.u8OH2Qn7.dpuf
This does not seem right to me. The "most significant" impact of Obergefell seems clearly to be the constitutionalization of a nationwide right to legal recognition of same-sex marriages. And it has been settled, unremarkable, black-letter law for years that laws cannot be based "solely" on "religious reasons."
But, to pursue the matter a little more deeply: As I see it, our laws pervasively and unsurprisingly reflect and are based on "religious" reasons all the time. It's just that theorists and courts have decided, from time to time, that certain "religious" reasons are sufficiently widely held, or sufficiently non-controversial, to allow them to be labeled (for legal and political-theory purposes) as something other than "religious." (For more, see this essay -- now more than 20 years old but still very helpful -- by Steven Smith.) Indeed, the reasons offered by Justice Kennedy -- sounding in dignity and liberty -- are not "quantitative" or "scientific" or "empirical" or "cost-benefit" . . . they are moral and, even if not explicitly, "religious." I continue to not see any real difference between what theorists are willing to accept as permissible "moral but not religious" arguments for laws that burden at least some people's interests and those that, although not couched in terms of revelation or divine authority or church teaching, get the label of impermissible "purely religious" reasons. Obergefell is not the end -- not really -- of "religious reasons" for laws; it is the defeat, with respect to a particular issue, of some "religious reasons" by others.
In the words of Pope Francis, "human trafficking is an open wound on the body of contemporary society, a scourge upon the body of Christ." It is a difficult topic often filled with an endless supply of stories of human tragedy. The mood here at CUA - where our National Catholic School of Social Service has been hosting (with Catholic Charities-USA, Catholic Charities D.C., and the United States Conference of Catholic Bishops) an important conference on the faithful responding to human trafficking - is both serious and passionate. The vision of Dean William Rainford was to bring together people from every diocese across the nation to learn about trafficking and how their diocese, organization, or parish can respond. After nearly two days, he has achieved his goal. The conference is filled to capacity with hundreds of participants hearing from a tremendous list of speakers from all disciplines.
Instead of blogging about the conference in a narrative form, I suggest interested readers follow the action via twitter at #stopslavery. However, I did want to highlight some of the comments that really brought together Catholic social teaching and this issue.
So many speakers have recognized the important role of Catholic grass root organizations, and women religious in particular, in combatting human trafficking. Amy O'Neill Richard from the Department of State described the work of faith based organizations as "critical," noting that the voice of Pope Francis on this issue has been "enormous." Sr. Margaret Nacke, founder of the Bakhita Initiative outlined so many organizations of women religious on this issue including, but not limited to U.S. Sisters Against Trafficking; Unanima International, Via Christi Health, Talitha Kum, and Coalition of Religious Congregations to Stop Trafficking. These are examples of not only tremendous work, but of work in a variety of disciplines including direct service to survivors, healthcare work, services to homeless teens, and policy work. She quite rightly noted, "We can find sisters with feet on the ground in cities throughout the world and sometimes they are the first line of help."
Some of the most compelling statements were from survivors and organizers themselves who reflected upon how member of the Church helped them. Gerardo Reyes Chavez, from the Coalition of Immokalee Workers noted that one of the first meetings of this amazing organization was held in a room of a Catholic church. Most moving were the comments of survivor Tina Frundt, founder of Courtney's House who shared that one of the first people to help her when she was being trafficked was the Catholic Worker house in DC where she described the power of non-judgment.
I had the good fortune of speaking this morning and tried to capture some of the energy of the room. While this blog could go on, suffice it to say the conference was a tremendous opportunity to see how the law interweaves with other disciplines and faith. While Tina Frundt chillingly reminded us that trafficking occurs right in our own parishes ("if we are not helping inside our parishes, how can we help outside?"), Gerardo Reyes Chavez summed it all up by noting, "consciousness + commitment = change."
While the faithful have always been a part of the work responding to human trafficking, the Pope has given us a new call. This conference has helped us spur forward to continue to work on this issue – the major social and moral issue of our generation.
July 10, 2015 | Permalink
[Note: I've revised this post slightly since originally publishing it.]
A few days ago, in the NYT Magazine, Emily Bazelon had this piece, What Are the Limits of "Religious Liberty"? Among other things, Emily gave a nice shout-out to Profs. Reva Siegel and Douglas NeJaime, who have this new article in the Yale Law Journal, "Conscience Wars: Complicity-Based Conscience Claims in Religion in Politics." I was a participant in a conference at which this paper was presented, a little over a year ago -- here's what I said -- and think it's definitely an important read. I also think, though, that some of its primary claims are unconvincing. I recommend that those who read it consider also reading, among other things, Marc DeGirolami's essay, "Free Exercise by Moonlight," which engages helpfully the claims I have in mind.
The Siegel & NeJaime article covers a lot of ground. Among other things, they contend that "complicity-based" conscience claims are distinctive, and raise special concerns, "because accommodating claims of this kind has the potential to inflict material and dignitary harms on other citizens. . . . Complicity claims focus on the conduct of others outside the faith community. Their accommodation therefore has potential to harm those whom the claimants view as sinning." (The quoted language is from the SSRN abstract.)
It does not seem to me, though, that B is necessarily wronged or demeaned by A's determinations that (a) B's conduct or proposed conduct is or would be immoral and (b) actions and intentions of A that would create culpable complicity with B's conduct should be avoided. Certainly, it's possible for these determinations to be communicated in an insulting or demeaning way. And, a determination by A that "B is not the kind of person with whom I want to interact" or "B is unworthy of my interacting with her" would raise, I think, the concerns NeJaime and Siegel raise. The paper argues, though, that even implicitly calling an act or omission immoral, or a "sin," insults, demeans, and wounds the dignity of the actor but this sweeping claim is hard to square with our practices and policies. (Marc DeGirolami has more on this point, here.)
Relatedly, it strikes me as misguided to insist that the law necessarily demeans or insults B by accommodating (to the extent it is reasonably possible) A's religiously-based desire not to be complicit in what A believes to be B's wrong. Even if A's moral judgment is, we think, itself wrong or unattractive, the government's accommodation of A's religiously based conclusion is not an endorsement of that conclusion, but only of the general desirability of accommodating, to the extent possible, religious commitments and exercise. What's more, if a law demeans when it allows an exemption for religious complicity-claimants, then why does it not demean when it mandates, without exemption, the cooperation to which the claimants object? That is, why shouldn't the law from which the exemption is, for complicity-avoiding reasons, being sought (say, a law requiring pharmacists to provide an abortion-causing drug) be regarded by the exemption-seeker as imposing on her a "dignitary harm", i.e., the harm of having one's moral commitments and reasoning not only rejected-on-balance, but also disapproved and found wanting?
I question the premise that inquiring into one's moral responsibility for -- or, one's complicity in -- another's act and, as part of that inquiry, evaluating the morality of that act, involves any "demeaning" of the other. Again, if it amounts to "demeaning" -- and, more specifically, if it amounts to causing a "dignitary harm" that triggers, as some have argued, Establishment Clause limits -- another person to conclude that that other person has engaged in an act that is wrong and so to decide to avoid complicity with that act then we'll have to reexamine a whole lot more than particular applications of RFRA-type laws.
In addition, I don't think it's entirely right to say that "complicity claims focus on the conduct of others outside the faith community." As I see it, when we talk about "complicity" (see, for example, the Model Penal Code's treatment) we are asking about the extent to which one person is morally responsible, or morally blameworthy, by virtue of her own conduct and state-of-mind, for the conduct of another. The accomplice's responsibility -- her state of mind and her assistance, encouragement, or facilitation -- is, I think, at least as much the "focus" of the inquiry as the action done or the harm caused by the other. (And, again, it seems to me that the character, worth, dignity, or identity of the other need not be part of the inquiry at all.) True, the reason we care about the accomplice's responsibility is usually because we have identified someone else's wrong -- or, more precisely, a harm caused or wrong done or wrong attempted by someone else -- but the focus remains, I think, is on the accomplice. (Sometimes, we even conclude that an actor is morally responsible for another's wrongful act or harm caused although the other is, for one reason or another, not blameworthy for that act or harm.
In any event, read Siegel and NeJaime, and also read DeGirolami. I remain, for what it's worth, concerned that the emerging focus on the "third-party harms" and "dignitary harms" said to be caused by legislative accommodations of religion threatens to excessively constrain our ability to vindicate the fundamental right to religious liberty in our context of increasing regulatory activity, dissensus, and diversity.
Sally Cohn's recent piece, "The New Post-Homophobic Christianity", attracted a lot of attention across the interwebs. Most of the concern focused on this line: "Will anti-gay Christians be politically and socially ostracized? I sure hope so." As some people pointed out, this sentiment seems in tension with some other things Cohn has written about the importance of civility and humility.
Another aspect of the piece jumped out at me, though:
As for everyone else, including florists and county clerks, yes, you will now have to provide the same services to straight couples that you provide to gay couples. Don’t like it? Find a new job. The law also requires that clerks issue birth certificates to the children of single mothers and that florists provide flowers for interracial weddings, regardless of the religious beliefs that have definitely been cited now and throughout history to condemn these families as well. Still, that doesn’t mean the law is trouncing on religion. It means the law is prioritizing equal treatment for all, as it should.
Obviously -- and notwithstanding the often-noted fact that "equality", by itself, is not usually doing the real work in any moral or political argument -- we are committed to "equal justice under law." (Whether "equal justice" always and in every context requires "equal treatment" is what we argue about.) Is it obvious, though, that "equal treatment for all" does or should, morally or constitutionally, enjoy "priority" over "religion" or, more specifically, "religious freedom"? It's a complicated question, for sure. After all, the content of "religious freedom" is itself determined at least in part by the demands of public order, the common good, others' rights, and other aspirations like "equal justice under law." But, the content of "equal justice under law" is also, in a similar way, determined "at least in part by the demands of public order, the common good, others' rights, and other aspirations like 'religious freedom.'"
What is (among other things) worrisome about the sentiments expressed by Cohn is that she seems to make "religious freedom" simply what's left over after we have finished comprehensively the work of securing "equal treatment for all." I don't think there's reason to expect, though, that very much would be left over.
I developed something like this idea in more detail in this short law-review article, which just came out in the Southern California Law Review.
Thursday, July 9, 2015
I will be speaking at the Christian Legal Society's national conference in New Orleans on October 2 and 3. (An especially fine time of year to visit NOLA, and a fascinating group of featured speakers, overall topics, etc.) First I'll join a panel on religious freedom issues, on the 2nd; then on the 3rd, I'll do a follow-up workshop on "Why Progressives Should Care About Religious Freedom." I hope these will give food for thought on very challenging issues (the whole conference is sub-themed "practicing law in turbulent times"). And then there will be great food for savoring, only blocks away. Y'all come down!
California "Right to Die" Bill Stalls Amid Opposition from Religious Groups. More here. Good. Unfortunately, and perhaps because the piece is in The Guardian, there's a lack of comprehension of, let alone sympathy for, these "religious groups'" opposition. For example:
Religious groups say allowing doctors to prescribe life-ending drugs is assisted suicide and goes against God’s will. Religious opposition helped defeat similar legislation in California in 2007.
It's hardly unique to, or even distinctive of, "religious groups" to characterize "allowing doctors to prescribe life-ending drugs" as "assisted suicide." Nor (more important) are the important arguments religious (and other) groups make against assisted suicide limited to the observation that the practice "goes against God's will." Although Glucksberg was given pretty short shrift by the Supreme Court recent, it nevertheless provides (according to this admittedly biased former Rehnquist clerk) a pretty good summary of a number of very good reasons -- in addition to "God's will" -- for being worried about assisted suicide. As did, if I recall, the amicus briefs of the many "religious groups" that were filed in the case.
I am just back from the Libertas Conference at Villanova Law School. It was an extremely edifying period of thought, reflection, and fellowship with a wonderful group of lawyers, political theorists, philosophers, historians, and journalists, including Steve Smith, Damon Linker, Christopher Tollefsen, Elizabeth and David Corey, Tuan Samahon, and Gerald Russello, among many others. Rick Garnett, Zak Calo, and I were fortunate enough to moderate the sessions over a period of three days.
The sessions really broke down into four general categories: (1) genealogical accounts of church and state in modernity (including readings by Brad Gregory and Mark Lilla, as well as by Steve Smith); (2) historical studies of the specifically English and American experience of church and state (including readings by Stuart Banner and Michael McConnell), (3) comments on the projects of cultural Christianity and secularism (John Courtney Murray, Robert Louis Wilken, and Pope Benedict XVI were on the agenda); and (4) diagnoses of and prognoses for religious freedom in the United States (here some of the readings were decidedly inferior as they included some of my recent work, but also much better stuff by Rick Garnett and Paul Horwitz).
The conference was organized by Michael Moreland with his usual grace, generosity, and aplomb. The participants' comments and insights will influence my own thinking and writing for a while, in ways I hope to note by and by. But here's one initial thought having to do with scholarly method. There are of course many different ways to make scholarly contributions in law: argument in the service of changing doctrine, synthesis of a body of law to arrive at a new insight, normative pleas for turns or returns to various positions having assertedly desirable political results, studies of empirical states of affairs, and so on. But my own view--helped along and shaped by the participants at the conference (as well as by posts like this one)--is that we are at the beginning of the flowering of an interesting period of long-view, retrospective, critical diagnostic scholarship in law and religion and constitutional law more broadly. Not everybody will be interested in this sort of approach, of course. Others in the field have different projects and different objectives. But at least for me, this is an invigorating thought.