Tuesday, October 10, 2017
A new paper I've just posted to SSRN may be of interest to MOJ readers. The paper--my contribution to a volume edited by William Eskridge and Robin Fretwell Wilson, Religious Freedom, LGBT Rights, and the Prospects for Common Ground (Cambridge University Press 2018)--is titled:
Conscience v. Access and the Morality of Human Rights,
With Particular Reference to Same-Sex Marriage
The paper is available here. The abstract:
Little remains to be said about “conscience v. access” that has not already been said — and often well said. Or so it seems to me. (Not that a consensus has been achieved. Far from it.) But “little” is not “nothing”. My aim in this chapter: to bring the morality of human rights to bear, and to do so with particular reference to conscience-based opposition to same-sex marriage. In particular, my aim is to bring to bear two rights that are fundamental parts of the morality of human rights: the human right to religious and moral freedom and the human right to moral equality. On "the morality of human rights", see Perry, Michael J., A Global Political Morality: Human Rights, Democracy, and Constitutionalism (April 25, 2017) available at: http://ssrn.com/abstract=2956843.
The intuition of many persons — an intuition I share — is that the conscience-based claim for an exemption from an antidiscrimination law pressed by the florist (baker, photographer, etc.) who is morally opposed to same-sex marriage presents us with a more complex and difficult issue than the conscience-based claim for an exemption pressed by the florist who is morally opposed to interracial marriage. My argument in this chapter serves to provide a rational vindication of that intuition; it serves to explain why as a matter of principle — specifically, as a matter of the human right to moral equality — the two conscience-based claims merit different responses, even if it is not unreasonable for lawmakers, in legislating, or for judges, in adjudicating, to reach the conclusion that, all things considered, the former claim too should be rejected.
OK, there may not be a lot of MOJ readers in the greater Wausau area ... But if you are, I'll be giving the annual Veninga Lecture on Religion and Society at the University of Wisconsin campus there, sponsored by the Wisconsin Institute for Public Policy and Service. Time is this Thursday at 7 pm. More details at those links. Title: "Religious Freedom for All in a Polarized Age."
Monday, October 9, 2017
Here's another new paper of mine, On the Uses of anti-Christian Identity Politics. Abstract follows:
This short essay, written for a conference on “Faith, Sexuality, and the Meaning of Freedom” held at Yale Law School in January 2017, briefly explores the emerging phenomenon of anti-Christian identity politics. The essay focuses on one particular legal source of it: a recondite provision of the so-called Treaty of Tripoli of 1796, which states that “the government of the United States is not, in any sense, founded on the Christian religion.” The uses to which the phrase has been put, it turns out, are more important than its confused and obscure historical meaning. In evaluating anti-Christian identity politics in only some of these uses, the essay considers the recent claim by Professor Mark Lilla that contemporary Americans — and American liberals in particular — ought to abandon “the politics of identity” in favor of a politics of shared citizenship.
Lilla is right that identity politics as practiced today have further corroded the commonalities that remain among Americans. Identity politics also render compromise on various culture-war issues more difficult: any policy or legal victory for the opposition, however small, assumes additional symbolic power and must therefore be resisted all the more fiercely. Yet the pathologies of identity politics are only symptoms of a more potent sickness in American political and cultural life. Americans, as citizens, share less and less. They disagree in deepening ways about the nature of the political and moral good, about justice, and about what sort of people they are and aspire to be. In short, identity politics are not the cause of, but a response to, political and cultural fragmentation. And anti-Christian identity politics, like Christian identity politics, represent one strain of that response — one ostensible point of rendezvous for a nation whose people are increasingly disaffected with and alienated from one another.
Here's a new paper of mine, The Two Separations. And here's the abstract:
There is nothing self-evidently attractive about separation — whether of church and state or anything else — as a model for individual or collective life. Pursuing separation is not like pursuing knowledge or friendship — ends that are intrinsically good. Separation must be justified by some contingent reason. Though the Constitution speaks of the free exercise of “religion” and “religion’s” non-establishment, much of the confusion about separation as an American civic ideal results from a failure to focus on the specifically historical and contingent justifications for it. These justifications concern not “religion” in general or in the abstract but Christianity in specific — Christianity being, as a historical and cultural matter, the central religious tradition of the United States.
These historical justifications have taken two cardinal forms. The first concerns the politico-theological benefits that are believed to devolve onto Christian churches, or onto Christian believers, from division from the state, and the general social and political advantages derived therefrom. The second involves the secular benefits to the liberal democratic state of unbreachable barriers against the civic and cultural influence of Christianity. The first justification is more ancient, but the second is more powerful today. The first is oriented positively, and the second negatively, toward the cultural and political value of Christianity in the United States. The first sees Christianity as precious. The second sees it as irrelevant or even obnoxious.
This chapter distinguishes and explores the two separations — separation as a specifically Christian piece of political theology, in large part for the benefit of a Christian civil society; and separation as a specifically secular position for the benefit of a liberal society that wishes to divest from and repudiate Christianity. It then describes the allure of equality and nondiscrimination as church-state ideals, their ascendancy in late twentieth century constitutional law, and the sense in which they are believed to have supplanted separation.
But neither equality nor nondiscrimination delivers what it promises: a valueless perspective on the social and political worth of Christianity. In fact, their perspective is decidedly negative. The chapter explains this claim by comparing the use of these principles in the contexts of race and sex discrimination, where the overriding assumption is that race and sex are fundamentally irrelevant considerations, and obnoxious and illegitimate bases on which to make laws and to order society. Transposed to the context of religion — and, as this chapter argues, the transposition in reality concerns Christianity specifically — a similar assumption holds: that Christianity is fundamentally an irrelevant, or even an obnoxious, and illegitimate, influence in the making of laws or the structuring of the cultural and political realms. Indeed, in a society in which Christianity has had such overwhelming predominance, insisting on equality is tantamount to squelching it. This view is not neutral as to the value of Christianity in contemporary American politics and society. It is nothing less than an expression of the second separation.
Friday, October 6, 2017
Several months after the President's religious-freedom executive order (which, many observed, didn't appear to actually do very much), we see today some important and meaningful action from the Administration on the religious-freedom front. The wheels are now turning to expand the religious exemption from the HHS contraception-coverage mandate and the Attorney General has issued memoranda and guidance on how the Department of Justice will deal with religious-freedom matters that are quite striking in their full-throated endorsement of a robust understanding of our "first freedom." The Attorney General stated clearly, in keeping with longstanding American tradition, that religious freedom is a fundamental human right and not merely a policy preference.
Harvard Law Students for Life hosted a standing room only panel yesterday at noon, featuring Mary Ann Glendon, Robbie George, and Jacqueline Rivers. Their common topic: "Why We Are Pro-Life: Dignity, Equality, Human Rights."
Mary Ann Glendon was up first, leaning on her well-known gifts as a raconteur to describe the various ways in which growing up in a small New England town influenced her views. (Her town was "a town much like those described a century earlier by Tocqueville...a town of 5000, the ideal size of a polis, according to Aristotle.")
First, small town life allowed a young person to experience and appreciate the ebbs and flows of human life -- births, deaths, disability, dependency--and allowed one to recognize how the decisions that individuals and families make in such circumstances have a cumulative impact over time. Choices matter and have long-ranging effects. Second, as Tocqueville observed, nearly everyone in a vibrant small town is engaged in some sort of civic activity. For her mother, that meant conservation, for her father, the Democratic Party (which stood for the working man, lending a hand to one another). When she arrived at college, those habits of civic engagement turned to the civil rights movement. Once abortion rights came around as a "cause" -- the 1970s -- Mary Ann assumed that the Democratic Party would be the obvious home for the pro-life movement, as yet the next phase of "expanding the beloved community," as MLK had inspired so many a decade before. It came as a frightful surprise then to find the Democratic Party abandon this basic principle. She concluded: "I began to worry that we were drifting toward a philosophy that I'd thought had been put to rest at the end of WWII: that some lives are more worthy than others, that some lives are not worthy at all."
Jacqueline Rivers spoke next, beginning with a firm statement that her pro-life views are rooted in her Christian faith: human life is sacred, science indicates that human life begins at conception, and all lives--regardless of race, gender, social condition, stage of development--are created in the image of God. As an African American woman, she said that she had a special concern for abortion's impact upon the African American community (black women make up 14% of the female population but have 40% of the abortions). She spoke at good length about the intersection of poverty, abortion, out-of-wedlock childbearing, and the retreat from marriage. Her work seeks to challenge the ecumenical black church - the most religious ethnic group in the country - to create a movement that is pro-poor, pro-life, pro-family. The Seymour Institute -- and her courageous work on the streets of Boston for decades now -- does just that. She testified last week against the assisted suicide bill that is (yet again) before the MA State House. I wiill post her powerful testimony in the days to come. Here is a re-up of my reporting on another excellent panel contribution - on religious liberty.
Robbie concluded the panel with a "biographical, biological, and philosophical" account of his views (all that in 15 minutes). The last two are familiar to MOJers, but the biographical aspect was new to me. Robbie said the single greatest influence on his views was his mother ("who is still alive and still a force of nature") who taught unequivocally that every person was the bearer of profound dignity. These were not mere words: she lived this creed profoundly and sacrificially, actively reaching out and caring for women in difficult situations, especially those who lived with abusive husbands or boyfriends. Through his mother's inspiration, he became active in the nascent pro-life movement when he was 13 (in the years before Roe came down), and through the movement met university students who were reasoning through the issue philosophically. Thus, one of our time's most gifted philosophers was born.
All three sought to encourage members of the audience to decouple the pro-life cause from its current association with the Republican Party. This is merely a historical happenstance, and a dramatic change from prior times (when so many of the most well-known Democrats were pro-life, namely Jesse Jackson, Bill Clinton, Al Gore, Ted Kennedy, and some of the most libertarian Republicans were pro-choice).
Thursday, October 5, 2017
In a recent post (here), Rick Garnett links to an essay he just published in the Notre Dame Magazine entitled “Life Affirming?” (here) in which he reflects on the status of the various life issues in the current legal, political, and cultural climate. I highly recommend that MOJ readers turn to Rick’s essay and read it in its entirety. Taking as his point of departure V.P. Mike Pence’s provocative claim made in January at the March for Life that “Life is winning again in America,” Rick asks the following question: “What would it mean, really, and what would it look like, for life to be — now, again or ever — ‘winning,’ in U.S. law, policy, culture and hearts?”
What would "winning" look like? In addition to what Rick says, let me offer the following (with which, I am certain, Rick is in full agreement).
With respect to abortion, we will know that we are winning not just when the law is changed to make abortion illegal (a point Rick makes clear), but when abortion is regarded as unthinkable. We will have "won" when the mention of abortion inspires the same kind of instinctual moral revulsion that slavery does, or the "Final Solution" does. We will have won when our moral reflex is such that we respond automatically "No! How could you even think such a thing!" -- where such a reflex manifests not the absence of moral thought, but an accumulated moral wisdom ingrained in the culture.
The same could be said of "winning" on all of the life issues -- when the thought of killing the elderly and disabled or abandoning the weak inspires a profound sense of shame in anyone who would entertain the thought even for a moment. We will be winning when the thought that first comes to mind isn't "How useful is this person?" or “What can I gain from them?” but "How can they best be cared for?" We will have won when those with Down Syndrome are not viewed as a statistic of morbidity and a problem to be eliminated, but as a persons to be cherished.
October 5, 2017 | Permalink
Wednesday, October 4, 2017
Scalia Speaks: Reflections on Law, Faith, and Life Well Lived was released from Crown Forum today. The late justice's son, Christopher Scalia, co-edits the volume, alongside former Scalia clerk and EPPC president (and my boss), Ed Whelan.
It is a remarkably funny collection of speeches, culled by the editors for a lay audience. Ever intelligent and witty, Justice Scalia's levity enchants almost every page (granted, I haven't yet read the chapter on the Holocaust). The speech "Games and Sports" begins: "I have been asked many, many times to what do I attribute my well-known athletic prowess." His response unfolds as an amusing narrative of the neighborhood pastimes of his youth, from marbles to roller skating to Ringalevio (about the last, he writes: "I don't know how to spell it; I actually don't think it has ever been written down.") In his deeply moving introduction to the book, Christopher quips that his father wasn't all that sure how to pronounce his own name either...
Justice Ginsburg writes the foreword to the book, sharing her gratitude for their mutual friendship over the decades they served on the bench together. Yesterday, CBS News released an interview of Justice Ginsburg together with the late justice's widow, Maureen Scalia. The two recounted how important the justices' friendship was, as puzzling as it may have seemed to the wider world. They lamented the loss of the time when "across the aisle" friendships were more common. In a tribute to Ginsburg included in the book, Justice Scalia refers to the working relationship they developed as a "mutual improvement society," admiring Ginsburg's propensity to want to improve rather than correct. ('Not, 'this is wrong, Nino,' but 'the point would be even stronger if.'")
Both justices are celebrated as icons by opposing camps in the legal world today. The sharp vision of each seemed to have been honed by the other. Would that younger generations of Americans would learn the lessons of this remarkable friendship.
All Catholic lawyers will want to read Scalia Speaks for its substance alone. Chapters include "Catholic Higher Education; Church and State; Faith and Judging; Nature Law; and Judges as Mullahs." But all of us would benefit from spending more time with this great man, whose good will - and great humor - ingratiated him to one of his greatest adversaries on the Court, and to untold audiences over the course of his lifetime.
Tuesday, October 3, 2017
I was pleased to be asked to write a piece for Notre Dame Magazine on my sense of the "life issues" in our current moment. It wanders around a bit, and covers a lot of ground, but here it is. A bit:
The proposal, the claim, and the truth that grounds the comprehensive and integrated pro-life position is that every person matters and no one matters more than anyone else. This was the message of Pope Francis’ Installation Mass homily, and it is at the heart of the Catholic Church’s social and moral teaching. A human being is a human person, and to be a human person is to have great, inestimable worth. This is true when we are very small and vulnerable, when we are old and sick, when our life seems all potential and when it seems at its very end, when we are strong, beautiful and creative, and when we are weak, ugly and venal. Our ultimate, transcendent worth does not depend on what we accomplish, on what we are capable of doing, on what we can produce or contribute, on how much we are wanted, or on how much we cost. No one is worth less and no one is worthless.
Politico’s Timothy Alberta has called economist and think-tanker Arthur Brooks “the most interesting man in Washington.” At a recent forum at Harvard’s Kennedy School, Brooks was reflecting on the unedifying state of public culture and conversation in America, and he proposed that the problem with our politics is not disagreement, division, polarization or even anger. In a free society, strong disagreements about at least some things that matter are, this side of Heaven, inevitable. For Brooks, what is striking is not simply the “Big Sort” into red and blue enclaves or our increasingly tribal divisions that infect everything down to debates about the regulation of large sugary sodas. Our real problem, he suggested, is “contempt,” which he defined as the “conviction of the worthlessness of another human being.” Who can deny that “contempt” is pervasive and ubiquitous? Indeed, in many contexts it seems to be the currency of our discourse. Anger can be resolved, but contempt, Brooks warned, leads to permanent estrangement.
Brooks is on to something. During the campaign — recall the Access Hollywood tape or his imitation of Serge Kovaleski — and since his election, President Trump has not hesitated to mock, insult and degrade — to express “contempt.” On “the other side,” one of the turning points in the election was Clinton’s expression of dismissive disdain for those in the “basket of deplorables” to which she consigned so many of those who resisted the appeal of her candidacy. No one could spend much time at the rallies or following the Twitter feeds of either of the two candidates and their surrogates, fans and followers and not be struck by the vicious, deep contempt with which the two camps regarded each other. It was contempt, not “heritage” or “history,” that inspired and informed the marchers’ chants in Charlottesville.
Now, Brooks was not speaking directly to abortion or to the “life issues.” Still, his assessment is helpful. The pro-life position is not merely a package of negative prohibitions but is a thoroughgoing response to the call and challenge to solidarity and mercy. To stand in solidarity — in community — with other persons is to embrace these other persons’ dignity, value, worth and destiny, and to truly — despite differences in ability, strength, beauty, talent, advantages and prospects — regard and treat them as equally bearing the image of God. What could be more contrary to solidarity than, as Brooks says, the estrangement that contempt produces? “Life” isn’t really “winning” — it cannot, really — if the political community and conversation are saturated with contempt.
Pope Francis has forcefully condemned abortion as a symptom of and contributor to what he calls our “throwaway culture.” It is an arresting and illuminating image, and it resonates with Brooks’ diagnosis and definition of contempt. What is it, after all, that we throw away? We throw away what we think is worthless, that which we can no longer bother fixing, saving, nurturing, protecting, repairing, treasuring or loving. It is, the pope has said, “precisely the weakest and most fragile human beings — the unborn, the poorest, the sick and elderly, the seriously handicapped, et al. — who are in danger of being thrown away.” But not only are there no “worthless” people, there are, as C.S. Lewis remarked in his sermon The Weight of Glory, “no ordinary people.” Those “we joke with, work with, marry, snub, and exploit” — those we mock on Twitter, those at whom we direct contempt, those we “throw away” — are “immortals” and “everlasting splendours.”
From me. Here. A bit:
Americans have, for better or worse, grown used to overconfident pronouncements from the members of the Supreme Court about matters – the true nature of golf, for example, or the long-term cultural implications of social media – that might seem outside their training and expertise. That said, Chief Justice Roberts was on pretty solid ground when he observed, in his opinion for the Court in the recent Trinity Lutheran case, that “[y]oungsters . . . often fall on the playground or tumble from the equipment. And when they do, the gravel can be unforgiving.” And, the foundation is no less firm for the Court’s conclusion that the First Amendment does not permit governments to discriminate against religious believers and organizations when distributing public benefits.
The Trinity Lutheran litigation was about replacing the pea-gravel on a church-run preschool’s playground with shredded scrap tires. The question presented to the justices was whether the Constitution allows the state of Missouri to refuse an otherwise-available reimbursement grant for this project simply because the applicant is a church. By a vote of 7-2, they concluded – correctly, I believe – that it does not. It is, as the Chief Justice wrote, a “basic principle” that the First Amendment “protect[s] religious observers against unequal treatment[.]” However, while the Court answered this question clearly, the ruling invited, and ignored, others. As a result, the case’s implications and impact are, for now, uncertain. . . .