Saturday, June 11, 2016
In response to this post ("MacIntyre's 'The Only Vote Worth Casting' Revisited) from a few days ago, I received a bunch of emails (that is, "a bunch" by Mirror of Justice standards!). A few thoughts, following up:
First, in response to those who (usually indignantly) disagreed with my expressed view that both major parties' nominees are corrupt and unworthy . . . yes, I get it that Mrs. Clinton knows more about foreign affairs and has more experience in government than does her opponent. This fact is not inconsistent with the accuracy of the adjectives I've used to describe her (and her opponent). In my view, she is unworthy of the office she is seeking. Her record is that of a person who is -- in addition to being substantively wrong on a number of very important issues -- corrupt, dishonest, hypocritical, and vicious . . . and not in garden-variety-politician ways. I think denying this requires one to forget or sugarcoat a whole lot about the last 25 years of her public life. Her opponent's pandering to, e.g., ugly nativism (and low-information views on immigration, NATO, trade, etc.) doesn't change the facts about her and her record.
Second, another friend expressed concern that, by refusing to vote for Mrs. Clinton even though her opponent is as unworthy as he is, I was effectively ruling one of our two major parties as completely illegitimate. I don't think I am. The Democrats are, at present, "all in" on the wrong side of certain issues that I think are important, but I am entirely willing to concede that reasonable and faithful people can conclude -- indeed, I also believe -- that their positions on some issues are better than those of the Republicans. I think my views about the upcoming election would be different -- given who is the Republicans' nominee -- if the Democrats' nominee were, say, Tim Kaine or Joe Donnelly, or any number of other honest and other-regarding public servants with whom I have some serious policy disagreements.
Third, in response to some friends who seem to think I don't realize how bad a Clinton administration would be with respect to the staffing of the executive branch and executive agencies, to the composition of the federal courts, and to the coercive use of executive power against religious institutions: No, I get it. If one has the views I do about what the Constitution means, about how federal spending and contracting conditions (and licensing, accreditation, etc.) should be used, about the culture-shaping power of the President's bully pulpit, then one cannot avoid the conclusion that the election of Mrs. Clinton (especially if that election is accompanied by a takeover by her party of Congress) will have negative and very long-lasting effects. She and her administration will be strongly ideologically motivated to push a number of policies that I think are unjust. Unfortunately, the people who turned out to vote in the Republican primaries voted in a way -- and they did have options -- that will probably bring about those effects.
Fourth, I am deliberately not getting into the debate over whether or not one "may" -- morally -- vote for either of these two nominees. For now, I'm assuming it's possible to come down either way (but I don't think anyone should feel good about either choice).
Fifth (and related to the third point): Yes, I do realize that the press applies double-standards and is (to put it mildly) inconsistent in terms of the outrage and scrutiny it directs at the two parties and their candidates. This doesn't mean, though, that the Republicans' presumptive nominee isn't entirely unworthy of nomination (let alone election). (See my first point, above.)
In my view, Catholics should view the two parties as vehicles, and not as tribes or as aspects of our identities. The Republican Party has -- in my view -- been, for most of my life, the better vehicle for things like judicial nominations, education reform, anti-Communism, protections for unborn children, religious-freedom rights, and some other things. If that Party nominates Mr. Trump, it is hard to see how it can continue, as a Party (put aside particular candidates), after the 2016 election, to serve as a useful vehicle on these and other issues. So . . . I'm hoping that the GOP convention installs Mitch Daniels.
Friday, June 10, 2016
Anyone seeking an education in ways of understanding politics should take some time to listen to, watch, or read transcripts of Conversations with Bill Kristol. Earlier today I happened to be listening to the podcast of Kristol's first conversation with James Ceaser, which took place last March, and I thought there was much wisdom to be found in it. Much of the conversation is about constitutionalism in the United States. But near the end the conversation turned to President Obama.
Consider how Professor Ceaser's observations about President Obama might help us to understand the Trump phenomenon. An excerpt:
KRISTOL: You’ve written a fair amount about our current president, President Obama, and I’m just curious from the point of view of a student of American history and of the American constitutionalism broadly, anything striking about him. I mean, what will historians note about the Obama presidency?
CEASER: Well, I think they’ll begin by noting the extraordinary election of 2008, which is partly about Obama but partly about Obama-ism, which was much more than a political phenomenon. It was a cultural phenomena and in way a worldwide phenomenon, something like almost a religious devotion to an individual who was seen as being able to deliver not only to the United States but the whole world from the morass in which it found itself.
And it’s more telling, I think, about the masses, even than Obama, because, after all, he was just the vehicle for this mass movement that emerged. The yearning for someone who could transform the world. That doesn’t speak well for the modern state of the world or democracy. It’s in a way a terrifying – a terrifying event to see so much hope put into one person with the obvious understanding that no person, even if Obama were more than he is, could ever have achieved that. So I think that 2008 is a quasi-religious phenomenon portending something about the character of our world. Maybe it’s just a one-off. Maybe the experience of disappointment will sober people up and make them feel a little embarrassed at how they acted in 2008. But that’s the event that stands out.
Even in the 2012 election, you look at that the campaign in 2012 was so radically different from 2008. It was effectively run in 2012 but there was no high inspiration, no hope and change, it was tough politics. So we’d already passed this curious stage. And I wonder in some ways, not to try and make excuses for Obama, whether he wasn’t the victim of this movement, which probably must have affected his soul in some ways.
When you move from venue to venue and you’re treated with such a degree of adulation, maybe if you’re not a strong personality, you begin to believe it yourself. And I think there are personal reasons, deficiencies in his own character, which I think helped that process along. But I think he was affected by this, began to think that these speeches that he gave, which had these responses could actually change reality. In particular in international affairs, his first speech in Cairo, maybe it was a prudential move, but he seemed to think that he could run foreign policy by his own voice. And that the same thing which brought him success in the election could bring him success in the running of the country and the world. We’ve seen, I think, that that’s not the case. A good solid and simple education, but an education nonetheless.
Since the rise of Trump, others have observed that the Trump movement of 2016 is a kind of funhouse-distorted-mirror version of the Obama movement of 2008. But keep in mind that Ceaser was making these observations about Obama a few months before Trump announced his candidacy and even longer before people began to recognize its potency.
Thursday, June 9, 2016
The Marian apparition mentioned in my preceding post links up in an interesting way with this passage from God and the World:
Q (Seewald): Basically, the message of Fatima is not very complicated at all. It was expressed in this way by the three children who saw the visions: "I am the beloved Lady of the Rosary! ... I have come so that men may become better. They must stop giving such pain to God."
A (Pope Benedict XVI): Indeed, the message itself is quite simple. And Lucia, the only surviving one of the children, has placed more and more emphasis on this simplicity and has said, Don't take notice of all the other things you are told about; it's all just a matter of faith, hope, and love. I too have been able to have a brief conversation with her. She said it then with great emphasis: Tell people that!
What she meant was: the angels we saw at first helped us to learn to practice faith, hope, and love, and the content of the whole message is that we should learn this. That is what the Mother of God wants to make us aware of and, by doing this, to purify us and convert us. Penitence is in fact this inward conversion of our existential attitude, stepping outside of the current trend, which leads away from God and leads us only to ourselves. Penitence is conversion, coming out of oneself, self-giving, which becomes love and which in turn presupposes faith and creates hope.
I believe that all these appearances of Mary, so far as they are authentic, do not bring us something to set beside the gospel. They offer no satisfaction to people's curiosity, no sensations or anything like that, but bring us back to the simple and essential things, which we are so easily inclined to overlook. Nowadays especially, with the complexity of all our problems, Christianity often becomes so complicated for us that we can no longer see the forest for the trees. It is a matter of being led back to the simple heart of it, not to anything else, but to the essentials, to conversion, to faith, hope, and love.
These words were reportedly spoken by Mary when she appeared in Argentina to Gladys Quiroga de Motta on October 13, 1983.
Not your typical corporate-law scholarship! Here's MOJ-friend and veteran Stephen Bainbridge with a new paper on The Parable of the Talents:
On its surface, Jesus’ Parable of the Talents is a simple story with four key plot elements: (1) A master is leaving on a long trip and entrusts substantial assets to three servants to manage during his absence. (2) Two of the servants invested the assets profitably, earning substantial returns, but a third servant — frightened of his master’s reputation as a hard taskmaster — put the money away for safekeeping and failed even to earn interest on it. (3) The master returns and demands an accounting from the servants. (4) The two servants who invested wisely were rewarded, but the servant who failed to do so is punished.
Neither the master nor any of the servants make any appeal to legal standards, but it seems improbable that there was no background set of rules against which the story plays out. To the legal mind, the Parable thus raises some interesting questions: What was the relationship between the master and the servant? What were the servants’ duties? How do the likely answers to those questions map to modern relations, such as those of principal and agent? Curiously, however, there are almost no detailed analyses of these questions in Anglo-American legal scholarship.
This project seeks to fill that gap.
Wednesday, June 8, 2016
As a boy growing up in Louisville in the 1960s and 1970s, Muhammad Ali was a figure who was impossible to ignore. At an early age I learned that the brash, beautiful boxer from Louisville – the “Louisville Lip” – was a man to be respected and in some ways admired. An exceptionally gifted athlete who backed up his bold predictions and over-the-top bravado with actions, Ali won the heavyweight crown an unprecedented three times. His catalogue of epic fights included defeats over Sonny Liston (twice, including the famous first-round knock-out in Lewiston, Maine), “The Rumple in the Jungle” in 1974 against George Foreman, and three monumental battles with “Smokin” Joe Frazier culminating in “The Thrilla in Manilla” in 1975. Over the course of his career Ali demonstrated a remarkable adaptability, changing his style from the lightening quick movement of his early years when opposing fighters found it difficult to land a punch, to the “rope-a-dope” style that enabled him to defeat exhausted opponents with rapid combinations late in the match. Given his unparalleled accomplishments in the ring, as a boxer, it would be hard to deny Ali his self-given moniker “The Greatest.”
Although he became arguably the world’s most famous person, Muhammad Ali never forgot his hometown, and he maintained close ties with Louisville throughout his life (see his closing remarks following the Foreman fight here).
My parents recognized the many challenges faced by the young Cassius Clay. As such, they taught my brothers and I that Ali was someone whom all Louisvillians should respect – someone who made use of his God-given talents and excelled, rising above the many disadvantages faced by someone born poor and black in the segregated South, someone who went on to become an Olympic gold medalist, World Champion, “The Greatest.”
Articulate and charismatic, there was, indeed, much to admire in Muhammad Ali. Although I think most of his fellow Louisvillians (including most African Americans) were puzzled by or disagreed with his conversion from Christianity (he was raised Baptist) to the Nation of Islam, and later to a more conventional form of Islam, they respected his freedom to do so. As with many celebrities, his struggles with marital fidelity (he was married four times and was a serial adulterer) were overlooked – out-shown by the brilliance of his boxing and the controversy of his politics.
Ali’s accomplishments as an athelete are all the more remarkable given the fact that he was not allowed to box for three-and-a-half years during the peak of his career. In 1967 he refused induction into the U.S. Army claiming conscientious objector status. He was subsequently convicted of draft evasion, sentenced to five-years imprisonment and fined $10,000. Although he remained free during his appeal (a case he eventually won in the U.S. Supreme Court, see here), Ali was stripped of his heavyweight title and banned from boxing in the United States, and denied a visa that would have enabled him to box overseas.
Many people were troubled (understandably) by Ali’s embrace of the Nation of Islam’s separationist approach to race relations (see here), including his vile opposition to inter-racial marriage, and his sometime demonization of the “white race” (see here).
Moreover, many resented Ali for his refusal to enlist in the army. As a child, I recall more than a few adults referring to Muhammad Ali as a “draft dodger.” And it is a fact that the Kentucky General Assembly passed a resolution stating that Ali had brought discredit to the Commonwealth and those who had given their lives for their country.
Still others admired Ali for his opposition to the Vietnam War and his support for civil rights, exposing the hypocrisy of an America that identified itself with freedom and equality while denying basic civil rights to black Americans. As he explained (see here):
Why should they ask me to put on a uniform and go ten thousand miles from home and drop bombs and bullets on brown people in Vietnam while so-called Negro people in Louisville are treated like dogs and denied simple human rights?
Citing his Muslim faith, Ali became an outspoken critic of the war (see here) noting in a blunt style that was uniquely his own, that the Viet Cong “never called me nigger, they never lynched me, they never put no dogs on me, they didn’t rob me of my nationality, rape and kill my mother and father” (see here). Moreover, he found it incongruent that white Americans would urge him to fight abroad but not support his rights as a U.S. citizen: “You won’t even stand up for me in America for my religious beliefs, and you want me to go somewhere and fight but you won’t even stand up for me here at home” (see here).
Since his death last Friday, Muhammad Ali has been celebrated as a man of conscience – as someone who willingly sacrificed financial gain in order to honor his religious faith. Mike Barnicle of The Daily Beast praised Ali as someone who “danced in the ring with more grace than any ballet figure but refused out of conscience to take one small step forward for his local draft board” (here).
The Pittsburgh Post-Gazette (here) described him as “a man of conscience who put his ambitions on the line by refusing to fight overseas on behalf of his country in an unjust war.”
The Atlantic acknowledged the national controversy created by Ali’s claimed conscientious objector status, but offered that “Ali’s stand against the Vietnam War transcended not only the ring . . . but also the realms of faith and politics.” The article quotes former Attorney General Eric Holder praising Ali whose “biggest win came not in the ring but in our courts in his fight for his beliefs” (see here).
Writing in the New York Times, Michael Powell writes that Ali gave us a model of courage: “Courage is being 24 years old and risking all, the anger of newspaper and television reporters, and millions of white Americans who see you as a public enemy, to say no to a war” (see here).
The headline for another New York Times story declared that Mohammad Ali had evolved from a blockbuster fighter to “a country’s conscience” (see here).
Hilary Clinton tweeted that Mohammad Ali was unmatched in his “courage and conscience,” and Bill Clinton said that we “watched him grow from the brash self-confidence of youth and success into a manhood full of religious and political convictions that led him to make tough choices and live with the consequences.” (see here).
It is refreshing and gratifying to hear this kind of support for the right of religious conscience. But where has this appreciation for America’s “first freedom” been these past several years”?
Barronelle Stutzman of Arlene’s Flowers (here) was not a heavyweight boxer, famous the world over. Neither was Jon and Elaine Huguenin of Elane Photography (here), or Jack Phillips of Masterpiece Cakeshop (here). But each was threatened by the government with severe penalties, for following the dictates of their religious conscience, just like Muhammad Ali.
As Eric Holder said of Ali, each of these individuals fought in the courts for their beliefs. Each has, as Bill Clinton said of Ali, made tough choices based on religious conviction. Unlike Ali, Barronelle Stutzman was not a 24 year old athlete when the government challenged her religious beliefs, but a grandmother in her 70s. Still, didn’t she risk “the anger of newspaper and television reporters, and millions of [secular] Americans who see [her] as a public enemy, to say no to [same sex marriage]”?
So why celebrate one and vilify the others? There is, of course, an obvious difference between imprisonment in lieu of military conscription and the imposition of crippling fines on a business. Yet it is also obvious that both are punitive measures that constitute a substantial burden on religious practice. Moreover, on the face of things, it seems clear that the government has a great interest in filling the ranks of the armed forces than in compelling a vendor to service a particular wedding.
So what accounts for the difference?
Is it simply the passage of time? That enough years have elapsed so that the wounds of Vietnam are no longer fresh and the questions of conscience raised by Muhammad Ali and others (such as Philip and Daniel Berrigan) are no longer pressing? Or is it the view that since the last helicopters left the roof of the U.S. embassy in Saigon, history has vindicated Ali’s judgment on the war? Perhaps this is simply the whitewashing (so to speak) of a radical character into a cherished avuncular figure? (see here).
All of these are plausible explanations, but I fear that the real reason is something far more insidious and pernicious. My fear is that for those who pay tribute to Mohammad Ali and scorn people such as Barronelle Stutzman are in favor of religious conscience as a principle when it is invoked to support a normative view with which they agree and dismiss it when it is invoked in defense of a normative view that they reject.
That, of course, is not support for the principle of religious conscience, but a cynical, counterfeit use of words.
June 8, 2016 | Permalink
Tuesday, June 7, 2016
Thanks to the generosity of Notre Dame's Center for Ethics and Culture and the Jacques Maritain Center, and their inimitable leaders, Carter Snead and John O'Callaghan, I am spending the week in Rome, talking, learning, and thinking about all manner of issues related to Disability and Misericordia. We just finished a two-day conference, really more of a study seminar, on "Disability and the Face of Mercy", co-hosted by the Pontifical Council for the Promotion of the New Evangelization, and physically hosted in the offices of the Congregation for the Doctrine of the Faith.
We heard from scholars from a host of perspectives on the topic: John O'Callaghan tracing problematic misconceptions of the Imago Dei back to St. Augustine's finding the image of God solely in the activities of the human mind; Carter Snead on how our public bioethics frustrates the application of law as an instrument of mercy; Mary O'Callaghan arguing for a return to mercy in the medical practices of prenatal diagnosis by reviving the original motivations of the people who developed the tools now being used solely for purposes of eugenic abortions; Thomas Williams on how radically Jesus overturned the notion of weakness and vulnerability; Elizabeth Lev graphically illustrating Thomas' arguments, exploring the differences in depictions of disability between classical and Christian art, and Fr. Terry Ehrman speculating beautifully about disabilities in the resurrected body. I spoke about sacramental access for persons with cognitive disabilities, reflecting on the great gift to the Church of witnessing how the truths of the sacraments can be understood and shared by people whose religious experiences are not expressed in conventional rational speech.
We also heard and saw first-hand how the many gifts of faith and truths of mercy are shared in communities fully embracing persons with disabilities, from a wide array of persons with disabilities and their partners in an extraordinary factory in Milan, L'Arche communities in both Portland, Oregon, and in Rome, and the community of Saint Egidio here in Rome. The conference officially ended with a fantastic dinner at the Trattoria degli Amici, the fantastic restaurant run by the community of Saint Egidio, staffed by people with disabilities.
That was the 'official' end of the conference, but much the delegation (including me) is sticking around to participate in this week's Jubilee for the Sick and Persons with Disabilities . I will post more about that experience, but in the meantime, I am just grateful to have been part of an extraordinary couple of days.
Monday, June 6, 2016
[MOD note: Professor John Inazu has written the following response to Professor Mark Tushnet's three posts about John's new book, Confident Pluralism: Surviving and Thriving Through Deep Difference]
Confident Pluralism, Expressive Association, and “Tone”
Mark Tushnet has a series of posts on Balkinization commenting on my new book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I appreciate Mark’s engagement with the book. And I appreciate the opportunity to offer this response as a guest post on Mirror of Justice.
Before I turn to Mark’s critiques, I’ll briefly situate the main arguments of the book. Confident Pluralism insists that our shared existence is not only possible, but also necessary. Instead of the elusive goal of unity, I suggest a more modest possibility: that we can live together in our “many-ness.” That prescription includes both a legal and a personal dimension. The two are interrelated. Silencing other viewpoints may begin with personal antipathy, but it ends with legal prohibition—a refusal to extend the protections of the law to one’s adversaries, and ultimately, an effort to turn the law against them.
The legal dimension of Confident Pluralism focuses on three areas: (1) protecting the voluntary groups of civil society through the rights of assembly and association; (2) facilitating and enabling dissent, disagreement, and diversity in public forums; and (3) ensuring that generally available government funding is not limited by government orthodoxy. The personal dimension of Confident Pluralism aspires toward tolerance, humility, and patience in three civic practices: (1) our speech; (2) our collective action (including protests, strikes, and boycotts); and (3) our relationships across difference.
Mark’s first post addresses my critique of the Supreme Court’s expressive association doctrine. His second post explores the implications of my constitutional argument for association with the oft-raised but important hypothetical of the racist restaurant. His third post criticizes the “tone” of my civic argument for tolerance, patience, and humility. I’ll comment first on Mark’s third post, which goes much more to the core of the book than his first two posts.
Tolerance, Patience, and Humility
Mark’s third post criticizes what he calls the “tone” of my book. He writes: “Most of [Confident Pluralism’s] argument appears to be directed at intolerant, arrogant, impatient secular liberals—although formally speaking, he addresses intolerant, arrogant, impatient religious conservatives as well.” Mark concludes his post by writing: “Tolerance, patience, and humility are good things, of course, but urging them only on secular liberals is not.”
I think the best response here is to leave it to other readers to decide whether my argument is slanted in the way Mark suggests. My hunch is that most readers, regardless of their ideological priors, will disagree with his characterization.
I do not mean to suggest that I wrote the book from a “view from nowhere.” I have all kinds of personal beliefs that affect how I think and how I see the world. Take, for example, the two most significant constitutional issues that I address in the book: the right of association and the public forum. Most of my views about associational autonomy lean conservative, and most of my views about the public forum (including public protest) lean liberal.
In the chapter focused on speech as a civic practice, my critique of the “hurtful insult” is directed mostly at conservatives and my critique of the “conversation stopper” is directed mostly at liberals (though it is not difficult to think of cross-cutting examples for each of these). And when it comes to the aspirations of tolerance, humility, and patience, I tend to think, and tried to explain, that conservatives are more likely to resist the aspiration of tolerance and liberals are more likely to resist the aspiration of humility—but that both are needed to pursue a more confident pluralism.
Throughout the book, I do my best to name hypocrisy or inconsistency when I see it. For example, when it comes to the expressive nature of for-profit corporations, I express disappointment with both progressives and conservatives: “Many progressives were quick to defend Mozilla’s moral expression (and that of large corporations like Apple in the debate over Indiana’s religious freedom law) but view Hobby Lobby’s claims less favorably. Conversely, conservatives who ardently defended Hobby Lobby were quick to critique Mozilla and Apple. Whatever conclusion we reach as a society about the expressive and moral claims of for-profit corporations, it ought to apply across the ideological spectrum.”
Mark’s post raises some specific examples that emerged mostly after I completed the manuscript. On the subject of recent religious liberty legislation, I agree with Mark that most proposed laws have been neither carefully drafted nor narrowly focused, an argument that I made last fall in an essay coauthored with Michael McConnell and Rick Garnett. With respect to the so-called bathroom laws, I have criticized the North Carolina legislation and I have pushed back on overly dismissive arguments by religious conservatives. I do think, however, that some of the policy implications of transgender laws in other facilities and other circumstances are more complicated than Mark suggests.
Mark assumes a polarized binary between “secular liberals” and “religious conservatives” that I do not adopt in the book. For example, Mark references a story about some hate mail I received after I wrote about protests in Ferguson, Missouri. Mark assumes that the letter came from a “religious conservative.” But nothing in the story hints at the sender’s religious disposition, or whether the sender is liberal or conservative. (Indeed, I know nothing about the sender except for his temperament and his apparent dissatisfaction with my writing.)
I worry that Mark has assumed a “culture wars” mentality that sees only two sides. The shortcoming of that approach is that it forces an alignment of contested issues with ideologies that oversimplifies the views of many if not most people in this country. There are secular liberals and religious conservatives. There are also secular conservatives and religious liberals and all kinds of other combinations in between. And many people hold views on individual issues that, once aggregated, would not fit neatly into any of these labels.
I wrote in the introduction to Confident Pluralism that the goal of the book “is not to settle which views are right and which views are wrong. Rather, it proposes that the future of our democratic experiment requires finding a way to be steadfast in our personal convictions, while also making room for the cacophony that may ensue when others disagree with us.” That goal does not mean we will be able to engage with everyone who disagrees with us. I am unlikely to respond to the person who sent me hate mail. But I do hope to engage meaningfully with many of the people whose paths I cross. That includes colleagues, near and far, many who disagree with me on contested cultural and legal matters.
In the best cases, those encounters allow us to discover common ground in spite of profound disagreement. That is, for example, what I hope my colleague, Marion Crain, and I accomplished in our article “Re-Assembling Labor.” It is also, I trust, why scholars as diverse as Jason Mazzone, Tabatha Abu El-Haj, Ash Bhagwat, Tim Zick, Rob Vischer, and Steve Morrison have taken a renewed interest in the First Amendment’s right of assembly—perhaps because they find common ground in a constitutional principle despite deep differences on other matters.
Let me turn now to some of the more granular doctrinal arguments in Mark’s first two posts, which address my critique of the Court’s expressive association doctrine. (I should note that the section on expressive association in Confident Pluralism summarizes a more extensive argument that I make in my first book, Liberty’s Refuge: The Forgotten Freedom of Assembly.)
Mark defends the Court’s distinction between “expressive” and “non-expressive” associations as one of the “second-order rules whose justification lies in the fact, or hope, that a system implementing those rules will actually achieve better compliance with the first-order norms than a system in which courts attempt to enforce only the first-order norms.”
There are two problems with Mark’s argument. The first is that we have little evidence that the second-order formulation actually parses the first-order norms better than an undifferentiated right of association. The Supreme Court first recognized a right of association in its 1958 decision, NAACP v. Alabama. The doctrine quickly destabilized around the Court’s attempts to distinguish between the NAACP (which it wanted to protect) and the Communist Party of the United States (which it did not want to protect). It is not clear how a second-order formulation would have better honored first-order norms given the Court’s disparate treatment of Communists and civil rights workers.
The Court first introduced the second-order formulation of expressive association (alongside a separate right of “intimate association”) in its 1984 decision, Roberts v. United States Jaycees. Since then, it has held that private civic groups (like the Jaycees) are expressive but unprotected against gender antidiscrimination norms, that the Boy Scouts are expressive and protected against sexual-orientation antidiscrimination norms, and that a skating rink is “non-expressive.” Lower courts have concluded that motorcycle clubs, fraternities, fight clubs, nudist colonies, and other groups are all “non-expressive.”
It’s hard to see how these distinctions hold up. As I argue in the book, the category of non-expressive association “obscures the fact that all associative acts have expressive potential: joining, gathering, speaking, and not speaking can all be expressive.” For this reason, “it becomes very difficult, if not impossible, to police this line apart from the expressive intent of the members of the group. And many groups that might at first blush seem to be non-expressive could in fact articulate an expressive intent.” (I also note in the book, and in an article on Virtual Assembly, that the distinction between expressive and non-expressive becomes even more precarious once we consider its online applications.)
The second problem with Mark’s second-order argument is his assertion that “the Court’s distinction between expressive and non-expressive associations was motivated by a concern that ordinary commercial enterprises would invoke the right to justify policies of racial (and, later, other) discrimination.” I don’t think that’s right. The closest we get to that view is Justice O’Connor’s concurrence in the Jaycees’ case, a view that has never been adopted by a majority of the Court.
Even if Mark were right about the Court’s view, the two second-order formulations are not interchangeable—“commercial” is not an adequate proxy for “non-expressive.” Many commercial associations are “expressive” and some noncommercial associations are “non-expressive.” Hobby Lobby is expressive when it takes a position on birth control, and Delta Airlines is expressive when it threatens to boycott Arizona over the state’s religious freedom legislation. Conversely, both a gay social club and a Christian prayer group arguably fall short of the Court’s definition of “expressiveness,” even though both groups are clearly noncommercial.
One could, of course, adopt a pragmatic distinction between commercial and noncommercial associations. Andy Koppelman has called this view a “neo-libertarian” approach to the right of association, which he attributes to a diverse group of scholars including Michael McConnell, David Bernstein, Dale Carpenter, Richard Epstein, John McGinnis, Michael Paulsen, Nancy Rosenblum, and Seana Shiffrin. I find the distinction insufficient insofar as it leaves open the possibility of powerful monopolies emerging from within the noncommercial category. In Liberty’s Refuge, I propose a line between commercial and noncommercial associations that also accounts for the monopoly situation in the noncommercial context (a position for which Richard Epstein has criticized me).
In short, I agree with Mark about the pragmatic line-drawing; I just don’t think expressive association gets us there. But all of this is a bit beside the point when it comes to Confident Pluralism. The primary claim of the book with respect to the right of association—and the one that I wish Mark had focused on a bit more—is that current doctrine insufficiently protects the private groups of civil society—the very groups that we most need to live out confident pluralism.
The Racist Restaurant
Mark’s second post raises the oft-made but important hypothetical of the racist restaurant owner who appeals to the right of expressive association to exclude non-white customers. As I’ve already suggested, my own pragmatic view is that the right of association (or what I prefer to think of as the right of assembly) should not extend to commercial associations. That knocks out the different versions of Mark’s hypothetical, so let me turn to the harder case that I address in the book, the racist private school. Schools present a much harder and more interesting question than restaurants (in the latter example, I agree with Mark that antidiscrimination laws should prevail).
It seems in this instance that courts have made plausible distinctions on the level of social policy. When it comes to race-based discrimination against African Americans in the wake of widespread and damaging practices of the Jim Crow South, the schools have lost. When it comes to any other kind of discrimination (including other forms of race-based discrimination), the schools have typically prevailed. That is not to deny that people suffer real and tangible harms from discrimination on the basis of other characteristics, including gender and sexual orientation (which is one reason that I support a pragmatic line-drawing between commercial and noncommercial associations under which the former would not be protected under the right of association).
The Intended Audience of Confident Pluralism
In closing, I’d like to return to Mark’s third post and clear up one final point: it was never my intention to write to “intolerant, arrogant, impatient secular liberals,” any more than it was my intention to write to intolerant, arrogant, and impatient conservatives. The people who have already made up their minds and demonized “the other side” are unlikely to persuaded by my book, even if they happen to come across it. The people I am trying to reach are those who are predisposed to be more charitable to one another, even in the midst of deep and intractable disagreement. They are the people who are open to reasonable arguments, and willing to listen to different perspectives. To my good fortune, based on my interactions with him, Mark Tushnet is one of them.
Sunday, June 5, 2016
Richard Doerflinger, the longtime director of pro-life activities for the U.S. Catholic bishops, is retiring and has given an interview to the National Catholic Register. In it he reflects on, among other things, lessons learned from the Affordable Care Act's political fallout. As many will remember, pro-life Democrats who had worked for the Stupak Amendment to the ACA (putting the most explicit restrictions on abortion funding), but who ultimately agreed to vote for the non-Stupak version of the law with an executive order on abortion funding, were targeted by pro-life fund-raising groups in the 2010 midterms. All but a few of those Democrats were defeated. Here's Doerflinger:
In the end, something happened that I thought was very tragic. The Democrats who pushed forward with the Stupak amendment, but then had their arms twisted to support the bill, were targeted in the next election.
It was a bad vote. But pro-lifers’ decision to target these legislators was unwise. They were pro-life members of the House, a force for our values within the Democrat Party, and you lost them as allies.
Kristen Day of Democrats for Life (on whose board I sit) reacts with points explaining why Doerflinger's recognition is correct, if sadly belated. The destruction of pro-life Democrats, she notes, eliminated the legislators who were the bishops' "natural allies" on the range of issues addressed by Catholic social thought, including "immigration reform, paid maternity leave," and "the social support that is critical to providing fuller support for women and families to choose not to abort their children." Their elimination made the pro-life movement entirely dependent on Republicans, which is turning out to be a very dicey bet as that party flirts, at least at the national level, with self-destruction at worst and (because of demographics) marginalization at best.
Was it worth it? The position apparently was that a vote against the ACA was not only pro-life--despite the various anti-abortion provisions and social supports in the law (which I among others detailed*)--but was so obviously the only possible position for a pro-life legislator to take that those who struck the balance the other way had to be chased out of office. Kristen Day explains why (as DFLA predicted in 2010) that assessment of the ACA and abortion funding has turned out to be far from the case:
Conservative pro-lifers were committed to the notion that lines of women would form outside federally funded clinics, eager to wait for their “free” abortions funded by our hard-earned tax dollars. A Lozier Institute report cautioned that the ACA would swell abortion rates by more than 111,500 federally funded abortions per year.
Fortunately, the Lozier report was flat-out wrong. A 2016 Associated Press study indicated that the number of abortions has decreased at an average rate of 12 percent in almost every state.The debate on the ACA brought awareness to the number of health insurance plans covering abortion and increased demand for, and awareness of, plans that do not cover abortion. A majority of health insurance companies and organizations, including the Republican National Committee, covered abortion at that time. Prior to the ACA, five states restricted abortion coverage in insurance.Today, twenty-six states prohibit abortion coverage. Twenty-one states allow coverage for abortion only in limited circumstances. Next year, [because of the ACA's own requirements,] every state must provide at least one plan that does not include abortion coverage. And more families have access to health care. Only two (both in Alaska) of the 155 multi-state plans cover abortion.