Mirror of Justice

Inciting Religious Hatred

The Paleojudaica blog has an interesting post about a proposed law in the United Kingdom that would outlaw "inciting religious hatred."  Apparently, “religious hatred” is defined as “hatred against a group of people defined by their religious beliefs or lack of religious belief”.  A government website also reports that:

The proposed and existing offences both carry a high threshold in order to protect freedom of speech. Words, behaviour or material used must be threatening, abusive or insulting and must either be intended to or likely to stir up hatred. The hatred must be aimed at people who are members of that group, not ideologies. Hatred is a strong term; which goes beyond ridicule, prejudice, dislike, contempt, anger or offence. A further safeguard in the legislation is that a person who does not intend to stir up hatred is not guilty of an offence if they did not know that their words, behaviour, written material, recording or programmes were threatening, abusive or insulting. Furthermore the offences do not apply to anything that takes place in one’s own home.

Like the post's author, I'm enough of a free-speech near-absolutist to be inclined -- almost reflexively -- to oppose laws like the proposed one.  Still, I could be wrong.  What do others think?  What should we think?

Rick 

95 (More) Theses

Brian Leiter has posted "95 Theses on the Religious Right," authored by Peter Ludlow, a philosopher at the University of Michigan.  Here are a few:

1. Our Lord and Master Jesus Christ, when He said "love thy neighbor", willed that believers should show *compassion* toward others.

2. This word cannot be understood to mean mere lip service ("I love them, but I hate their sin"), but genuine concern for the welfare of others.

3. Yet the Religious Right has forsaken compassion for a doctrine of institutionalized hatred and violence.

4. Specifically, the Religious Right has taken the Word of God and wrapped it in the flag of Right Wing Politics, replacing God's message of redemption for the entire world with a narrow message endorsing right wing American politics.

I imagine that few Christians -- right or left -- would disagree with the content of theses like (1) and (2) (or the the many others on the list like them).  Nor would many on the "right" disagree with the idea that it would be bad if the charges made in theses like (3) and (4) (or the many others on the list them) were true.  The problem, for me anyway, is that thesis (3) --  "the Religious Right has forsaken compassion for a doctrine of institutionalized hatred and violence" -- is not true, unless, of course, one defines "the Religious Right" as "those who have forsaken compassion for a doctrine of institutionalized hatred and violence."  Certainly, there are many such people.  But whether and to what extent the class of those who have "forsaken compassion for . . . hatred and violence" overlaps with the category of citizens usually identified as "the Religious Right" are questions about which I imagine Ludlow and I would disagree.  In any event, the list is worth checking out.

Rick

More 10 Cs Blogging

I'm with Rick among those blogging on the 10 Commandments cases at the SCOTUS Blog.  My first post is here (UPDATE: another one here).

Tom B.

"Divisiveness"

As I mentioned in an earlier post, I'm blogging -- with a dozen or so other law-and-religion folks -- about the Ten Commandments cases for the next few days over at SCOTUS Blog.  I would really appreciate my fellow MOJ-ers' reactions to the decisions, though.  Although the results were entirely expected, and -- in a way -- the cases break little new ground, there are so many things "going on" in the various decisions that are interesting and provocative.  For me, the most striking (for now, anyway) thing to come out of the decisions is Justice Breyer's putting at the center of the Establishment Clause inquiry his predictions and observations about "political divisiveness" and "social conflict."  In his view, it appears that avoiding social dissension is more than a policy desideratum or a prudent aspiration. It is, somehow, a fundamental, judicially enforceable religion clause "principle".  This view takes us back to then-Chief Justice Warren Burger's statement, in the landmark case of Lemon v. Kurtzman (1971), that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect."  Burger foresaw "considerable political activity" on the part of "partisans of parochial schools," and would have none of it.  Such activity, he feared, "would tend to confuse and obscure other issues of great urgency."

As I've said before, it is not clear why our political, cultural, and other "divisions" should be relevant to the legal question of whether a particular policy is constitutionally permissible.  In fact, there is something unsettlingly undemocratic about the notion that the First Amendment authorizes courts to protect us from “confusion” or privileges judges’ sense of political "urgency."  Even Chief Justice Burger conceded in Lemon that "political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government."  Judicial squeamishness toward messy politics is hardly a reliable constitutional benchmark.

Eugene Volokh's question, I think, is an important one:

What has caused more religious divisiveness in the last 35 years -- (1) government displays or presentations of the Ten Commandments, creches, graduation prayers, and the like, or (2) the Supreme Court's decisions striking down such actions? My sense is that it's the latter, and by a lot: All these decisions have caused a tremendous amount of resentment among many (though of course not all) members of the more intensely religious denominations. And the resentment has been aimed not just at the Justices but at what many people see as secular elites defined by their attitudes on religious matter. The resentment is thus a form of religious division, and I've seen more evidence of that than I have of religious division caused simply (i.e., setting aside the litigation-caused division) by the presence of Ten Commandments displays, creches, or even graduation prayers.

Isn't there something strange about a jurisprudence that in seeking to avoid a problem (religious divisveness) causes more of the same problem, repeatedly, foreseeably, and, as best I can tell, with no end in sight?

And, there seems to be a lot to Sandy Levinson's statement that "we have a Supreme Court (and, of course, they are not unique in their perceptions) that is basically terrified of politics and the potential for genuine conflict that a serious politics can generate."

Thoughts?

Rick

Decalogue Decisions

While the texts of the two Ten Commandments decisions are not yet available on line, I have read a number of news reports on the internet media services. From one perspective, it seems (and I emphasize this point) that the majorities in both cases endorsed an analysis reflecting what I call “the formulaic calculus of the candy canes” from the Rhode Island crèche case. Whilst the Court still does not offer some proportion regarding the legal percentage of religious items in a display, it would once again appear that if the secular outnumbers the religious items, the display passes Constitutional scrutiny. In the case from Texas, the ratio is 16 or 17 non-religious items to the one religious item. I have not been able to determine what else graced the halls of the courthouse in the Kentucky case. In this context, I find what seems to be at the core of Justice Scalia’s concern to have merit: how does such a ruling serve the rule of law and the development of a principle that can be uniformly applied? The point is highlighted by the fact that the Court appears to indicate that the legality versus the illegality of the display must be ascertained on a case-by-case basis. Like other MOJ participants, I look forward to reading the opinions when they become available. I am certain the subsequent commentary will be enriching.  RJA sj

Ten Commandments blogging

As everyone knows by now, the Supreme Court voted 5-4 against a particular Ten Commandments display in a Kentucky courthouse, and 5-4 (a different majority) in favor of another Ten Commandments display on the lawn of the Texas state capitol.  The opinions are available, as is lots of good discussion, at SCOTUS Blog, where a number of First Amendment scholars (including me) are participating in a conversation about the case.  Here is my first post.  Check it out. 

Rick

Becker-Posner on Kelo

Given the to-and-fro on this blog about the recent takings case, MOJ readers may be interested in what Nobel Laureate Gary Becker and law-and-economics guru Richard Posner have to say, on their blog, about the power of eminent domain:  here and here.
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mp

Read the TLS!

Okay, last post for the day (it's too hot for the pool, and the Yankees-Mets aren't on til 8:20, so I blog). In my last post I quoted extensively from a review In the (London) Times Literary Supplement. I don't know how many of our readers read it regularly, but I've beem subscribing for several years and find it terrific. I'm not particularly an Anglophile, but it is  a change of pace that is definitely worth its pricey subscription rate. Of most interest to MOJ is its regular and very sophisticated reviews of new books on religion and theology -- much better than anything I've seen in similar pubs in the US. They review more books and different books in those fields, and they are often reviewed by people within religious traditions, rather than by people who don't quite know what to make of this slightly distasteful religious stuff. For example, they published a review several months ago of a very interesting book fr Univ of Notre Dame Press by Christopher Insole, "The Politics of Frailty: a Theological Defense of Political Liberalism," which has not yet received any attention in the US non-specialty pubs (though I'm working on a review for Commonweal). The TLS also just published (6.10.05) a devastating critique of the DaVinci Code -- not a new topic, but done with an extraordinary thoroughness by the Professor (Emeritus) of Crusading History at the Univ. of Nottingham (now that's an academic title !). Surprisingly, the TLS is both more academic and more fun to read than my other favorites, the NYRB and the New Republic, and light years beyond the increasingly puffy and lower-middlebrow NYTimes Book Review. It also has two odd, but very interesting regular essayists, Hugo Williams and Michael Greenberg, and the reviewing style also has a kind of polite savagery that is far more entertaining than the painfully earnest critiques found in American reviews. The Letters also have an edge and wit that make the snarkiness of the American blogosphere look like the sophomoric heavy-breathing that it usually is. So, the TLS is my pick of the month (plus, you can read it at the beach or the pool!)

--Mark

I Gotta Read This Book!

I happened to run across in the (London) Times Literary Supplement (6.17.05) a review of a new translation of a book by the French sociologist Pierre Boudon entitled "The Poverty of Relativism." It is apparently not yet in print in the US, but I'm about to try to get it from the British publisher. I gotta read it, because it slams simultaneously two of my unfavorite things, welfare economics and moral relativism. It slams them both because it identifies rational choice analysis/welfare economics (which is central to US-style law & economics) as fundamentally relativist. Here is how the TLS reviewer, Stein Ringen (Prof. of Sociology and Social Policy at Oxford) explains Boudon's argument:

"In the final chapter,Boudon returns to the culprit of rational choice. That is a theory of human behavior. Motives are taken to be given: what people want is always to maximize their utility. If that is so, behaviour can be explained as that which may be most useful. Boudon ties this theory to a tradition that goes back to the French positivist August Comte (not a hero) who excluded the subjectivity of actors from scientific consideration. This is the tradition Boudon wants to liberate the human sciences from. In that tradition, most of what is important and interesting in life and society simply does not get considered; it is relegated to assumptions. [MAS here: I think those would usually be called "preferences" or "tastes".] What then remains is a pretty trivial and technical task of calculating what people are likely to do in this or that situation, given the assumption that behaviour is always motivated by one and the same intention. " [MAS again: Ouch! I love the "pretty trivial and technical task" part!]

         "But human behaviour, says Boudon, is not about utility. It is about reasons. Some of the things people do they do because it is useful, for example when we buy washing powder. Other things we do because we have decided that it is the right thing to do with no calculus of utility to ourselves, for example to vote in elections. People think what they think for reasons and do what they do for reasons. The human sciences must therefore embrace... the ambition of understanding not only what people do and think but WHY they do what they do and think what they do.... Rational choice is relativism. It is such in precisely the way that Boudon warns us about, by taking a valid theory to extremes. The classical theory is derived from a theory of reason. Descartes called it 'good sense'. Good sense is not a matter of maximizing utility, it is that tempered by by a sensitivity to decency and propriety. Decency and propriety is not the language of rational choice.... [I]n modern rational choice theory, rationality has collapsed into a macho bravura by which that what is rational is what is useful, no questions asked about what it is useful for."

Those who have read my paper "Utility, the Good and Civic Happiness: A Catholic Critique of Law and Economics: A Catholic Critique of Law and Economics" (forthcoming, J. Cath. Leg. Studies [St. John's Law]) (linked in sidebar) will understand why I like this argument, for mine is quite similar. I wish I had been smart enough, though, to define the problem with rational choice and welfare economics more explicitly as one of relativism.

-Mark

New from the Journal of Catholic Social Thought

I am happy to announce that the proceedings of the second annual Symposium on Catholic Social Thought and the Law ("Principles and Practices of Subsidiarity") have been published as vol 2, no.2 of Villanova's Journal of Catholic Social Thought (summer 2005). The issue includes papers by MOJ-ers Susan Stabile and Rob Vischer as well as law profs John Stinneford (Dayton/St. Thomas), Phil Pucillo (Ave Maria), and Pat Brown (Seattle), as well as other scholars. The issue was edited by yours truly (er, by my students, actually). Individual copies can be purchased for $30, and subscriptions for the 2 annual issues for $40, by writing to the Journal at PO Box 465, Hanover PA 17331. Checks only, no credit cards yet. If your library does not subscribe, please ask them to!

As I've announced before, our third annual CST/Law symposium will be here at Villanova on "The Legacy of John Courtney Murray for Law and Politics" on September 16, 2005. The day long confab is now shaping up, and will be quite interdisciplinary. We'll have a panel on JCM and Christian Social Ethics in America featuring MOJ-er Tom Berg and Fr. Michael Baxter (theology, ND); JCM and American Democracy featuring political theorists Ken Grasso (So. Texas) and Bill Gould (Fordham); and JCM and American Law with papers by MOJ-ers Bob Araujo, Rick Garnett and Susan Stabile. Villanova Law faculty Pat Brennan, Kathy Brady, Jeannie Heffernan and I will serve as commentators. We'll be sending around hard copy announcements shortly, as well as posting an electronic version. PS -- I'll need paper titles from those presenters who haven't provided them yet asap -- and you know who you are!

--Mark