Tuesday, July 22, 2014
As Mirror of Justice readers probably know, Prof. Hadley Arkes contributed a piece to the June issue of First Things called "Recasting Religious Freedom." In that piece (and in some others) he expresses (among other things) concern not about the result in the Hobby Lobby case but in the arguments and premises on which (he thinks) many of Hobby Lobby's supporters have relied. He is worried, for instance, that the arguments pressed by Hobby Lobby's defenders have emphasized the extent to which the contraception-coverage mandate burdens religious "beliefs" and that these defenders have uncritically accepted what he regards as an unsound claim, i.e., that there is a "right to be wrong."
He returns to this general line of thinking in this piece ("Post-Hobby Lobby Illusions") and this one ("Backing Happily Into Heresy"). And, in these posts, he is responding to (among other things) Ryan Anderson's critique, "The Right to Be Wrong." Ryan wrote:
. . . Arkes is a friend and mentor of mine. He is a hero of the pro-life cause and has been a bold voice for moral sanity in the academy. When he speaks, and especially when he offers fraternal correction, one must listen and carefully consider what he has to say. Yet in this case, I cannot ultimately follow his lead. . . .
I agree. Arkes' First Things piece and the more recent ones to which I have linked are, in my view, mistaken in several respects. I won't repeat Anderson's arguments -- which I think are compelling -- but will just share a few thoughts in response to Arkes' expressions of concern.
First, Arkes writes:
I’ve argued in these columns that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion; that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”
Here, I think that Arkes is wrong. It is not the case -- given the relevant real-world givens -- that the Hobby Lobby case "could have been won" using the argument that Arkes suggests, i.e.: "In a regime of freedom, people have a presumptive claim to all dimensions of their freedom, and the burden lies with the government to offer a 'justification' for restricting that freedom." Over and again, in the First Things piece and in the others, Arkes seems to be frustrated that Hobby Lobby's lawyers and defenders made the arguments that the relevant pieces of positive law invited -- it's probably fair to say "required" -- them to make. It could well be that the Religious Freedom Restoration Act does not capture fully or well the real and true foundations of religious freedom, properly understood. But, nevertheless, the Act is the Act, and for Hobby Lobby to win, Hobby Lobby's lawyers needed to argue -- and would have been foolish not to argue -- that the Act entitled them to win.
Next, in "Backing Happily into Heresies" (here), Arkes appears to be arguing that Gregory Holt should lose his RLUIPA case (which the Supreme Court will hear next Term). (Disclosure: I signed an amicus brief supporting Holt, who is represented by Prof. Doug Laycock.) When "we" argue that Mr. Holt's religiously motivated desire to wear a beard is one that current, valid, governing positive law recognizes and protects, we are -- Arkes says -- "walking in a haze, celebrating along the way, and backing happily into heresies, political and religious." Specifically, we are mistakenly buying into the idea that "we cannot judge the content of beliefs, or test them by the standards of reason we bring to anything else."
But, again: There is a piece of duly enacted legislation, RLUIPA, the meaning and implication of which is at issue in the Holt case. And, according to that legislation, it is not a mistake, but is rather clearly and obviously the right thing to do, to put aside the business of judging the "content" of or otherwise "test[ing]" the truth or Holt's religious beliefs. What matters is whether or not the challenged official action substantially burdens a sincerely held religious belief and, if so, whether that burden is adequately (within the meaning of RFRA) justified.
Now, I imagine that there is a connection, or significant overlap, between (a) egregiously and dangerously misguided religious beliefs and (b) religious beliefs that the government is justified in burdening. But, again, I do not understand why Arkes seems to be insisting that lawyers with a job to do should do something else. (I also think it is wrong -- and contrary to Dignitatis Humanae -- to contend, as Arkes appears to contend, that the right to religious freedom does not include the right to hold and -- within the limits imposed by public order and the common good -- express and act upon religious convictions that are unreasonable or untrue.)
This piece, "Uncle Same Eavesdropping Outside the Confessional," by Aaron Taylor, at First Things, is well worth a read. Discussing a current controversy in Louisiana, Taylor explains why "[c]ompelling Catholic priests to violate the confessional is not only bad for the Catholic Church, but bad for America." And . . . he gets to invoke Fr. Henry Garnet's martyrdom along the way.
John Inazu has a very good piece up at Christianity Today, "Religious Freedom v. LGBT Rights? It's More Complicated." In a nutshell:
First, we must understand the history from which they emerge. Second, we must understand the legal, social, and political dimensions of the current landscape. Third, and finally, we must recognize that arguments that seem intuitive from within Christian communities will increasingly not make sense to the growing numbers of Americans who are outside the Christian tradition.
After sharing several predictions -- including the troubling "Fewer people will value religious freedom" -- Inazu develops the following point:
If I am correct about these three predictions, then arguments rooted in religious exceptionalism will see diminishing returns. There is, however, a different argument that appeals to a different set of values. It's the argument of pluralism: the idea that, in a society that lacks a shared vision of a deeply held common good, we can and must live with deep difference among groups and their beliefs, values, and identities. The pluralist argument is not clothed in the language of religious liberty, but it extends to religious groups and institutions. And Christians who take it seriously can model it not only for their own interests but also on behalf of their friends and neighbors.
Pluralism rests on three interrelated aspirations: tolerance, humility, and patience. . . .
. . .The argument for pluralism and the aspirations of tolerance, humility, and patience are fully consistent with a faithful Christian witness. And in this age, they are also far likelier to resonate than arguments for religious exceptionalism. The claim of religious exceptionalism is that only believers should benefit from special protections, and often at the cost of those who don't share their faith commitments. The claim of pluralism is that all members of society should benefit from its protections. . . .
Inazu's claim about the declining "resonance" of "religious exceptionalism" arguments is, I suspect, accurate as a descriptive matter. And yet . . . religion is special, and our Constitution, laws, and traditions treat it as special. Stay tuned.
Monday, July 21, 2014
This morning I posted Jameson Doig's opening salvo in the debate on marriage that he and I are conducting this week at Public Discourse. Here is my reply:
Each of us was given 2500 words for our opening contributions. On Wednesday, Professor Doig will reply to my reply. On Thursday, I will complete round two with a reply to his reply to me. For this round, each of us will have 1500 words. On Friday, we will post a joint essay reviewing our debate.
For interested readers who have not yet read Professor Doig's opening contribution, here is the link. (Since I am replying to him, it makes sense to read his contribution first.)
July 21, 2014 | Permalink
I've got a review of Steve's book over at The University Bookman. A bit from the beginning:
In legal scholarship, as in any literature, style matters as much as content. The subjects authors explore, their manners and patterns of thought, the metaphors and idioms they select, the grace with which they address the audience and carry it along—in sum, the personal qualities that emerge in the telling of the tale—are remembered long after the details of the argument have faded. Over the duration of a scholarly life, a writer constructs a personality. And as the relationship of author and reader matures across the years, the publication of a new piece is the occasion to look not so much for argumentative roundhouse punches that could have been thrown anywhere by anybody, as for an old friend.
This is the way I come to the work of Steven D. Smith, the most penetrating and thoughtful scholar of religious freedom of our generation, and that rare author in American legal academia whom it is a joy to read. His new book, The Rise and Decline of American Religious Freedom, represents a distinctively and recognizably Smith-esque contribution. His authorial method has always been primarily diagnostic: he describes the existing legal and historical landscape, and in so doing brings a particular critical perspective that generally runs more or less against the current. Toward the conclusion of his work, Smith often gestures toward several possible resolutions to the problems he has discussed, but they are rarely more than that: soft speculations, almost afterthoughts, about a few pathways out of the forest. But the heart of a Steve Smith book is in the careful exposition of a problem. He has cultivated this method over the years with consistent, wry panache to great effect—whether the subject is the healthful absence of a single theory of the religion clauses of the First Amendment, or the contemporary obsession with the value of equality, or the unsustainable claims about the “reason” that inheres in constitutional law and scholarship. Always, Smith offers an alternative historical and doctrinal description. Always, he hints suggestively at contrarian possibilities and ends. Always, the leitmotivs are skepticism and decline.
This week, Public Discourse, the on-line journal of the Witherspoon Institute edited by the redoubtable Ryan Anderson, will be featuring a debate on the nature of marriage between me and my longtime Princeton colleague Jameson Doig. Professor Doig's opening salvo appears today:
I reply tomorrow, followed by Professor Doig's reply to my reply on Wednesday and my reply to his reply to my reply to him on Thursday. On Friday, we will post a joint statement summing up our points of agreement and disagreement and commenting on the state of the debate about marriage more broadly.
July 21, 2014 | Permalink
Sunday, July 20, 2014
In The Atlantic, Molly Ball describes how some advocates for gay rights fear that the intensifying opposition to religious exemptions among other proponents will push back the passage of the Employment Non-Discrimination Act, the major piece of gay-rights legislation in Congress. Legislation with protective accommodations remains an essential strategy for giving respect to both sides in a genuinely pluralistic society.
I am crushed by the news of Dan's death. I got to know Dan pretty well over the last five years, espcially since Dan began to spend a good chunk of his time in New York. We both write in criminal law theory (Dan more, and better, than I), we have collaborated together on a book project about retributivism, and I participated from time to time in the criminal law theory workshop that he put together up here. He was always organizing, building, and bringing together. He was an impresario as well as a fine scholar. But when he was here in New York, we'd often find time to get breakfast alone together--just the two of us, whether down in Brooklyn (his preference) or in Manhattan (mine). Our last breakfast was in late June.
Dan was one of the leading lights of the new retributivism that sprang to life in the late 1980s and 1990s. This new retributivism often takes some of its inspiration from the work of Herbert Morris as well as the political liberalism of Rawls. There are many versions of retributivism, but Dan's built particularly on the Morrisonian foundation to conceive what he called 'the confrontational conception of retributivism.' Together and in conversation with such formidable minds as R.A. Duff and others, Dan conceived retributivism in condemnatory but also deeply humane and offender-centric terms. Retributive punishment was justified in part because in condemning the offender, it communicated respect for the offender's autonomous choices. What was key in his conception was the communication of condemnation with the intent that the recipient of the condemnation understand that condemnation (even if the recipient rejected it), and that the communication is performed in such a way that the recipient can make sense of it through his free will. You may notice a number of assumptions, including a robust notion of free will, which exist in such a conception of punishment. Dan always defended the free will of the offender fiercely against attacks coming from deterministic angles. And he defended the "intrinsic goodness" of retributivist punishment, provided that one was beginning from the situation of a society in which laws vindicated by such punishment were reasonable and democratically enacted. He was fond of quoting C.S. Lewis's observation that retribution "plants the flag of truth within the fortress of a rebel soul." Yet retributivist punishment in Dan's view of it was limited: it was a specifically political communication by the state to an offender who was a worthy interlocutor.
For many years, Dan was engaged in profitable exchanges, debates, and defenses of his communicative conception of retributivism. Some challenged his conception on the basis of conceptions of punishment dependent on the suffering of the offender. Some brought new and interesting consequentialist critiques of the CCR. Some challenged Dan's conception of retributivism as political rather than more comprehensively moral. For myself, I have always been more of a fellow traveler with respect to Dan's retributivist project than some. I found his views very appealing. But I often pressed Dan about the difference between expressivism and his CCR, and we had many long and vigorous discussions about precisely where expressivism ends and the sort of communication that he was interested in begins. Against my attacks, he was tenacious in his view that the two were qualitiatively different. The last time we had breakfast, we batted the question around for what must have been at least the 10th time. It was such fun.
Always he was extremely gracious to me and a very important person for my own scholarly development. The very first conference I ever organized--"The Retributivist Tradition and Its Future"--was co-organized by Dan. I half-joked that perhaps the conference should have been called "The Retributivist Tradition *Is* Its Future." He joked back by offering, "The Retributivist Tradition and Its Totally Different Future." Dan was the first person I ever asked to write a promotion letter on my behalf. I believe that my letter was the first such letter he had ever written. When he had a draft, he showed it to me before submitting it because, he said, "intellectual friendship is more important than the niceties of procedure." He urged me to write more in criminal law theory. I urged him to do more in law and religion. And he did do some work in that area as well. Perhaps he would have done more.
I will miss him very much.
Saturday, July 19, 2014
Like so many others, I was devastated to hear the news this afternoon that Dan Markel had suddenly and tragically died. The notice from PrawfsBlawg (which he created) is here. Dan and I were summer associates together in 2001 in the Washington office of O'Melveny & Myers and have been friends ever since. He was a gifted scholar and teacher, of course, but more importantly he was a loyal friend who brought a community together wherever he went. I treasure the time we had together last summer hiking in Colorado and the gatherings at AALS and elsewhere of Dan's many friends. I grieve most for Dan's two little boys and pray for their consolation, somehow. Requiescat in pace.
A civilian passenger plane carrying 290 passengers — men, women, and children — was shot out of the sky by an anti-aircraft missile. The downed flight was a commercial airliner flying a route that had been approved by international aviation authorities.
All 290 passengers on the airliner died. As the news broke, heart-breaking photos of the wreckage soon appeared in the international news media — horrific pictures of dozens of bodies of people of all ages, along with debris of personal effects.
No, I am not here describing this week’s tragic incident in Ukraine involving Malaysian Airlines Flight 17 and killing 298 people. Instead, I am recalling the 1988 shooting down of Iran Air Flight 655 by the U.S.S. Vincennes, which resulted in a nearly identical loss of life. Iran Air Flight 655 carrying 290 passengers had departed from Bandar Abbas International Airport and was traveling to Dubai when it was shot down by an American naval missile system over the Persian Gulf.
To be sure, there are differences between the 1988 Iran Air 655 incident and this week’s Malaysian Airlines Flight 17 incident. The U.S.S. Vincennes had been attacked in the Persian Gulf by Iranian gunboats and was engaged in combat when the radar system picked up an aircraft coming toward the ship from Iran. Notwithstanding the exigent circumstances, however, the difference between a slow-moving Airbus and a supersonic military fighter jet should have been apparent, and the radar crew failed to recognize that the Iran Air flight was climbing at the time and not on an attack path. The United States did take immediate responsibility for the downing of the Iran Air flight and paid compensation to the families of the victims (although the federal government successfully invoked sovereign immunity to defeat tort lawsuits filed in United States courts on behalf of the survivors).
But, at the end of each sad day, nearly 300 innocent men, women, and children died horribly because an insufficiently trained military unit acted rashly on the basis of limited information. Each was the result of an atrocious error by an irresponsible military force. The captain of another U.S. ship present at the time in the Persian Gulf said that the shooting down of Iran Air 655 “marked the horrifying climax” to a pattern of over-aggressive behavior by the commandor of the Vincennes.
Importantly, the lesson is not a new one and this week's tragic loss of Malaysian Airlines Flight 17 shows that it has not yet been learned around the world. Nor was the Iran Air 655 tragedy in 1988 the only other such episode. In 2001, Ukraine military shot down a Russian passenger plane, and in 1983, a Soviet fighter jet destroyed Korean Airlines Flight 007.
We need not make the error of characterizing the Malaysian Airlines Flight 17 episode as “terrorism” to insist that those responsible be held accountable for this episode and that use of military force must be carefully constrained to protect civilians. A “terrorist” deliberately targets civilian populations to provoke fear and chaos in the populace. The intercepted communications between Russian military advisors and pro-Russian separatists in eastern Ukraine make plain that they thought they were shooting down a Ukrainan military transport plane and were shocked to discover that the downed plane was a civilian aircraft, wondering aloud why a civilian airliner was flying in a war zone. Nonetheless, we can rightly deplore this episode as involving criminal negligence—perhaps even the level of recklessness that would qualify as manslaughter under Anglo-American definition of homicide.
A responsible nation should never entrust a military system capable of such mass destruction of innocent life to other than a carefully trained team of regular military professionals and even then should insist that every precaution be in place and hesitancy demanded before such a system is employed. Given that the American military has not repeated that episode in the last quarter-century, that immediate lesson may have been learned in the aftermath of the U.S.S. Vincennes. Today, Russia should immediately withdraw such weapons systems from the rag-tag bunch of militias and criminal gangs that Russia has incited to violence in eastern Ukraine.
We live in a broken world. A violent response to frustrations, even if purportedly limited, too often explodes into far greater atrocities and much greater loss of life than anyone intended at the outset. Those of us who believe that international responsibilities do sometimes call for use of American military force nonetheless should be sobered by an episode such as this and be reminded that our own military too has made such unconscionable mistakes in the past.
Let us all continue to pray for a world in which not only innocents traveling high in the skies but all people may know peace and personal safety. And let us today hold in our hearts and prayers the victims of Malaysian Airlines Flight 17 and their families, including Sacred Heart Sister Philomene Tiernan, a member of the staff at Kincoppal-Rose Bay School, a Catholic girls' school in Sydney who lost her life on that flight, while remembering as well the souls lost 25 years ago in the Persian Gulf on Iran Air 655.