Mirror of Justice

The Politics of Religious Liberty: Three Perspectives

I thought to bring up again an issue that I've raised here before a few times.  It involves the alignment of support and opposition for religious liberty with political orientation, and whether that alignment is undergoing a fundamental shift or not.  Here are chunks of three writings to set the stage.

The first is from something I wrote a few years ago:

My horse sense is that the political history of law and religion scholarship might track (very) roughly the comparatively recent history of American politics.  It would evince, that is, a movement from a state of relative convergence on a set of agreed upon views to a state of increasing splintering and balkanization (or, to put it in more sanguine as well as ambiguous terms, to a state of increasing pluralism) of perspective.  Of course I don't mean that the earlier convergence among religion clause scholars tracked or mirrored an earlier political convergence, or that the current, more balkanized situation runs parallel to contemporary American politics.

What I mean is that if one were to survey the state of the field, say, roughly 30-40 years ago, one would probably see something approaching a rough similarity of perspective among many law and religion scholars -- folks who read both the Free Exercise and Establishment Clauses in a 'strong' way.  Many of the most important scholars of that generation held that general view, even as there may have been intramural differences among them.  Indeed, some of those very same folks were in attendance at our conference.  Of course there were dissenters from that general position 30-40 years ago too -- but the point is that there existed such a majority view, and that it was considered, for lack of a better term, mainstream, or eminently reasonable within the academic world -- a mid-20th century academic moderate liberal's view (which is not the same as a non-academic moderate liberal view).  Part of the power of the view was that a strong reading of the Establishment Clause gave these scholars a kind of bona fides -- certainly within academic circles -- when arguing for a strong reading of the Free Exercise Clause.  If you are against majoritarian religion, the chances might increase in the academy that people will listen to you when you argue in favor of anti-majoritarian religion. 

But today, I think it is much more difficult to identify any mainstream or consensus-like position.  There are those who like a strong EC and a weak FEC, those who prefer weak readings of both, those who go for a strong FEC and a weak EC, and those who hold to the strong reading of both.  But even those who prefer the dual strong reading aren't necessarily coming at the issue from the point de depart of mid-century academic moderate liberalism.  Some are coming from traditions of faith; some from radical political perspectives; some from rather specialized policy engagements; some from distinct philosophical traditions, and so on.  That variety of background has generated a broadening of normative preferences.  And so too, perhaps like the political culture itself, the political culture of law and religion scholarship exhibits a pattern of fragmentation -- it begins to look much more like a European parliamentary arrangement than the American situation at least as it once was.

The second is from a recent post by Nelson Tebbe:

Two questions come to mind about this familiar understanding of the interactions between methodology and politics among religious freedom theorists.  First, has this conceptualization [a division of the field methodologically into monists, skeptics, and pluralists] of the field ever been correct?  Has the role of politics been as complicated and unpredictable as it suggests?

If it has captured a measure of the truth, a second question is whether it still usefully describes the literature, or whether we are witnessing a realignment.  Certain debates have moved to the foreground — such as the conversation over whether religion deserves special constitutional protection as compared to deep secular commitments of conscience — and positions within those debates do not seem to be easily captured by the old typology.  Yet those positions do seem to track wider political affinities more readily than did the customary choice among monism, pluralism, and skepticism.  For example, liberals tend to think that religion is not special, conservatives usually argue that it is, and moderates believe that it only sometimes should be protected like secular conscience.  Does this shift, if it is happening at all, suggest a different kind or degree of politicization within the field of religious freedom theory?  Is any such shift clarifying or obfuscatory?

The third is an interesting comment by Eduardo Peñalver on a post about the recent Times story on Stanford Law School's new religious liberty clinic.  In response to my comment, Eduardo writes:

Marc — I’m not sure. I don’t know that I agree with Nelson that we are seeing a realignment in the academy. There are a few prominent people arguing that religion is not special (esp. Schragger and Schwartzman), but there were a few prominent people arguing the same thing a decade ago (Eisgruber and Sager). I’m not sure I see a consensus of liberal constitutional scholars coalescing around that position. On the political side, there are partisan disagreements now about some borderline free exercise claims (the contraception mandate and some issues related to recognition of gay marriage), but there seems to me to be a bipartisan commitment to broad free exercise rights. It seems to me that there have been efforts on the right to make religious freedom an ideological issue (accusing Obama of a war on religion, etc.), but i don’t think these have been successful in creating a realignment on the issue. The way I see it, there are lots of religious people and lots of people who care about religious liberty on both the left and the right.

Do any, or all, of these accounts ring true for readers?  Are some more persuasive than others?  Are all wrong, or only half right?  Comments are open.

"Mounting Religious Restrictions in Europe"

Over at the site of the (excellent) Religious Freedom Project (a project of Georgetown's Berkley Center), Roger Trigg has a very informative essay called "Canary in the Coal Mine," in which he discusses four recent decisions handed down by the European Court of Human Rights.  Here is his concluding paragraph:

Certainly, as is recognised in the case of conscientious objection in a time of war, it is the mark of civilised society to respect a conscientious stand, even if it is thought misguided. Whether freedom of religion can be simply replaced by an appeal to individual conscience is much more doubtful. Religion seems to be itself of deep importance in human life, and should be cherished. It has a social dimension, with institutional, as well as individual, aspects. What is quite clear is that once freedom of religion is not thought to be of absolutely fundamental importance in a society, but can give way to current social priorities, freedom of conscience also is challenged. Religious freedom, itself, is very hard to prise apart from the most basic freedoms that make any life worth living. It is regrettable that current European jurisprudence does not appear to take this point seriously.

Associate Justice Antonia Clarentia Ligouri: A(nother) response to Cathy Kaveny

In this post -- continuing her discussion of the HHS mandate and the RFRA and constitutional challenges to it -- Cathy reminds us of some important questions that arise in the deployment of First Amendment doctrine and in the enforcement of RFRA, namely, that (a) courts have to confirm that the challenged government action does place a "substantial" burden on religious practice (this does not, in the caselaw, mean "huge" or "crushing", but I agree with Cathy that it would exclude trifles and trivia) and that (b) courts have to decide whether the government interest purportedly justifying that burden is "compelling" (or some other evaluative word).  And, as she discusses, it is an interesting and important the extent to which courts should defer to the claimant (on (a)) and the government (on (b)).

In practice -- in order to avoid, probably, the risk of conflating judges' views of a policy's merits with the "compellingness" (for doctrinal purposes) of the government's interest -- what courts often (and, I think, reasonably) do is to assume for the sake of argument that the interest the government holds out as "compelling" really *is* compelling (unless it's obviously illegitimate or impermissible), and then inquire about the "fit" -- the "tailoring" -- between the burdensome regulation and the asserted state interest.  And, when laws are invalidated via the application of this method, it is very rarely because the interest is identified by the court as not-compelling.  It is, instead, because the "fit" is poor -- it's "underinclusive", say.  This poor fit serves as a signal that (i) the *government* doesn't *really* think the interest is all that important (because it has pursued it so half-heartedly, perhaps in a way that fails to spread the burdens of the policy fairly), or (ii) that the asserted interest isn't *really* the government's aim (i.e., the bad fit exposes a bad motive).

I think that those of us who think the mandate RFRA think so not so much because we think a court will and should hold that "increasing access to contraception is not, in fact, a compelling public interest, because contraception is immoral", but instead think that "the burden on religious practice is unnecessary, because the government's interest could have been achieved by less burdensome means and because the government's willingness to exempt so many employers from the mandate calls into question the claim that the *government* believes the interest is really compelling."

Unconditional forgiveness

I was quite moved by Paul Horwitz's reaction to Eugene Volokh's paean to hatred.  The moral emotions are complex phenomena and not always under our control.  Proper love of self, however, requires that, when we have suffered an offense, we try to overcome the hatred we understandably feel with love in the form of forgiveness, and without precondition.  Forgiveness does not entail reconciliation, and sometimes proper self-love will preclude reconciliation with the forgiven offender.  I have defended the obligation of unconditional forgiveness from a Thomistic virtue-theoretic perspective here .  Forgiveness is not supine.  It is an act no one can perform for us, and it is an act that conforms us to what we have received from the God who has forgiven us our trespasses and debts. 

Exploring the Catholic Intellectual Tradition

Boston College has a new issue here of its regular publication "C21 Resources" that explores the Catholic intellectual tradition. The issue (edited by Father Robert Imbelli) includes excellent contributions from, among others, BC's own (and MOJ friend) Greg Kalscheur, SJ, CUA President and former BC law dean John Garvey, and the lovely and talented Anna Bonta Moreland on teaching and the Catholic intellectual life in Villanova's Department of Humanities.

Law's Virtues at Brookings

I will be a respondent at an event next week (Thursday, January 31) at the Brookings Institution on Cathy Kaveny's new book, Law's Virtues: Fostering Autonomy and Solidarity in American Society (Georgetown University Press, 2012) moderated by Bill Galston and alongside EJ Dionne and Melissa Rogers from Brookings and Margaret Little from Georgetown's Kennedy Institute. Details here.

Roe and "our daughters"

I was struck yesterday, on the 40th memorial of Roe v. Wade, by several statements by those favoring legal abortion who stressed the "need to protect the right to choose for the sake of our daughters."  Our daughters.  Hmmmm . . . .  Every child (or, if you prefer, since it changes nothing, every "fetus") slain in an abortion is male or female. The victim is not a male or female mosquito or rat. He or she is a male or female human---a son or daughter. As it happens, worldwide more often the child killed is a female, a daughter, and very often the child is killed precisely because she is female. A daughter is destroyed in the womb because her father or mother or both want a son, not a daughter. She is not good enough. She will not do. She must be gotten rid of. How sad an irony that the defense of the legal right to take the life of a child in the womb is made in the name of protecting "our daughters."

The Abortion Debate

 

I was pleased to see some discussion of the abortion issue in several of yesterday’s postings on the fortieth anniversary of Roe v. Wade. After teaching for a good portion of the day, one of my young Jesuit colleagues who is studying philosophy here at Loyola University Chicago asked me to celebrate Mass and conduct an adoration hour for the students who will be going to Washington later this week and who will be participating in the March for Life and related events. I accepted the invitation, which is an honor for me. My confrere is the survivor of an unwanted pregnancy, and I understand why he is committed to proclaiming the pro-life message with objective reason and intelligence. He is talented, hard-working, and most productive. He is also a graduate of some of the most distinguished universities in the United States. He knows how close he came to being destroyed in his natural mother’s womb. In preparation for the Mass and adoration, he and I talked a little bit about how pro-abortion advocates assert the things that they do. I explained to him how their argument had switched from the privacy argument which was first made in the advocacy leading up to Roe to equality once the privacy argument failed.

I further explained that the equality argument also has its weaknesses and briefly explained an essay that I had written a few years ago [Download 45HousLRev] which examined the pro-abortion argument’s foundation on a misconception of equality. Since this essay relied upon an earlier essay of mine regarding the equality argument in general, I have also attached that essay here [Download 27QLR113].

Let us pray for our fifty-five million fellow Americans who were not so lucky as my young Jesuit brother. But let us also pray for those who think that privacy and equality arguments entitle them to destroy other fellow Americans.

 

RJA sj

 

Lumen Christi seminar: "Catholic Social Thought: A Critical Investigation"

This seminar, with Russ Hittinger, for graduate students, looks great.  (I wish I could enroll!)  Five days in Berkeley, in August . . . what are you waiting for?

This seminar is an intensive five-day course for graduate students in how to read, analyze, and discern continuities and discontinuities in Catholic Social Thought from the late 19th century to the present.  Lectures, seminar reports, and discussion will focus upon original sources (encyclicals and other magisterial documents), beginning with Rerum novarum (1892) and concluding with Caritas in veritate (2009). These documents are more often referred to thanactually read and studied. This intensive course is multi-disciplinary, for this tradition of social thought overlaps several disciplines in the contemporary university:  political science, political philosophy, law, economics, theology, and history.  The goal of the seminar is to provide a sufficient introduction to the tradition of Catholic Social Thought to enable graduate students to teach it as a course and integrate it into their own research

Why Is There So (Relatively) Little Good Scholarly Work on Abortion?

A thought (or just a hypothesis) for the day: For a topic that has convulsed American law and politics since 1973, the abortion issue has produced a surprisingly meager scholarly literature. This came to me when I was selecting readings for a seminar in law and bioethics, which I teach from time to time--it turns out it's hard (at least much harder than I expected) to find good resources on the topic. I don't mean to suggest, of course, that there has been nothing worthwhile written on abortion. Judith Jarvis Thomson's article about the kidnapped violinist in "A Defense of Abortion" (1970) remains a classic pro-choice argument, and our own Robby George, his mentor John Finnis, and John Keown (another Finnis student) have produced powerful defenses of the pro-life position. Then-Professor John Noonan's edited collection The Morality of Abortion: Legal and Historical Perspectives (Harvard, 1970) includes Noonan's own "An Almost Absolute Value in History" and Paul Ramsey's "Reference Points in Deciding about Abortion." (Note that Thomson's article and the Noonan collection are all pre-Roe and now over 40 years old.) Will Saletan's Bearing Right (California, 2004) was an interesting read about the politics of the pro-life movement, Mary Ann Glendon's Abortion and Divorce in Western Law (Harvard, 1989) is a wonderful comparative study, and my colleague Joe Dellapenna published a 1300-page survey of the history of abortion, Dispelling the Myths of Abortion History (Carolina Academic Press, 2006).

I am leaving a lot out that I could mention from many quarters (McMahan, Kaczor, Beckwith, eg), but, even so, this strikes me as a relatively small output of literature for a topic of such prominence. Law review articles working through the weeds of legal doctrine on abortion strike me as less common than one might expect (Jessie Hill's, Naomi Cahn's, and Reva Siegel's work on the pro-choice side, Mark Rienzi's, Michael Paulsen's, and Helen Alvaré's work and articles such as Stephen Gilles's "Roe’s Life-or-Health Exception: Self-Defense or Relative-Safety?," 85 Notre Dame L. Rev. 525 (2010) on the pro-life side being notable exceptions--again, leaving out some other candidates). Why is this? Are the arguments on each side now so well-rehearsed and known that there is little new--since, say, the initial outburst of literature in the early 1970s--to say on the topic? Are the terms of the abortion debate (sanctity of life, equality, liberty, autonomy) themselves so intractable that, as Alasdair MacIntyre suggests in After Virtue, abortion is merely one manifestation of the incommensurability in moral argument that afflicts our culture? And so writing on the topic--certainly writing in the hope of persuading those readers who disagree--is usually not worth the effort?