Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, May 1, 2020

Thoughts about equality and the church-closure issue

Over in this post at my other perch, I have some observations about what I perceive (anecdotally) as rising tensions in response to the Coronavirus-related shutdown orders and other government policies. It's not every day that a municipal Italian government threatens to shut down Mass, disperse the congregants, and force a mask on a priest (see the video). The words are in Italian, but I translate enough of the exchange to give a sense of the tension. There are tensions here in the US, too, and I talk about some of those as I've observed them, from a distance, in New York.

One of the things these conflicts has me thinking about is the psychologically powerful, but (in my view) highly problematic, pull or draw of equality as equal treatment. I'm not saying anything that hasn't been said by others, but I find it interesting to observe that something of what they have said is working itself out in especially high relief and in real time.

In the very beginning of the virus crisis, the fear of the unknown and the comparatively broad coverage of the shutdown orders combined to overwhelm considerations of equal treatment. Food stores were open, yes, and churches were closed, but the emergency seemed to be understood to require drastic and rough measures, and people were prepared for a time to accept unequal treatment for, as it were, the common good.

But as the crisis reaches a second stage--an emergency of a different kind, now a more chronic or enduring condition--and as discretionary government decisions are made both as respects relaxing the closures and prosecuting violations of rules, the powerful psychological draw of equality as equal treatment starts to assert itself. Discretionary decisions require discrimination, and it's at this point that considerations of unfairness become stronger in people's psyche.

The trouble is that resentments about unequal treatment depend upon other, deeper judgments about the nature and value of various kinds of human activities. These judgments are signaled by the use of terms like "essential" but they aren't really resolved by them. Partisans of one or another sort of human activity or way of life then develop arguments for distinguishing the truly essential from the less essential, but these are invariably thought to be spurious or worse by partisans of another sort of human activity or way of life. The arguments about equality really are only cover for other sorts of arguments that it would not be possible to resolve without the rhetorical appeal to equality. The real disagreements go not only to different ways of life, but to different conceptions of the good or goods of any particular human activity. Consider religious observance. If one's view is that all of the true goods of religious observance can be obtained individually, at home, in solitary prayer in front of a screen, then one will think that distinguishing between churches and liquor stores--treating the goods of the human activities that these places foster unequally--is perfectly justified. But if one's view of the true goods of religious observance is very different, then one will not accept these arguments.

All of this to say something that has been said before, I suppose (see, e.g., Westen in part), but that seems especially striking to me right now. Both the psychological power of equality and its problematic, often unspoken, dependence on much deeper and more fundamental assumptions about the differential value of human activity, will become more acute as the crisis enters its subsequent and more attenuated phases.


DeGirolami, Marc | Permalink