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.

Thursday, September 22, 2022

Smith on the case for and against regulation of hate speech in liberal regimes

Here is the last of our summer conference pieces on "Liberalism's Limits," this one by Professor Steven Smith. Steve's reflections on the shifting role of individual identity in liberal polities suggest that while there has always been a strong case against regulating hate speech in such regimes, there is now a strong case for it. A bit:

In a different way, though, liberalism may strengthen the case for regulating hate speech. To see how, let us notice the importance of something that is typically taken for granted but that modernity and liberalism, in particular, can render fragile–namely, personal identity.

Think of it this way: public policy decisions are typically debated by reference to people’s “interests”–in health, prosperity, etc. But “interests” presuppose persons who are the bearers of those interests: no persons, no interests. And to be a person, one must be biologically alive and possessed of the DNA of homo sapiens, of course, but one must also have an identity: otherwise, we would be only a blob of tissue and psychic activity, not a person. Hence, a threat to persons’ identity is more fundamental than a threat merely to their “interests.”

In most situations, identity may seem to be simply given. But identity can become problematic. Individuals may become perplexed and paralyzed by the question: “Who am I?” And such identity crises can proliferate to become a societal problem. Indeed, “the question Who am I? is now one of the most fraught of our time,” Mary Eberstadt reports.

Moreover, liberalism seems to aggravate this problem, in at least two interconnected ways. First, liberalism can subvert the grounds or sources of identity. Simplifying, we can say that in most times and places in Western history, people’s identity has typically been grounded in two main sources: their religion, and their family or social relations. You were James, Roman Catholic, son of Geoffrey and Alice–or Bonnie, Protestant, daughter of William and Anne. But the liberal project has been, if not exactly to undermine church and social structures, at least to liberate the sovereign individual from dependency on these institutions so that she can “be herself,” or “be who she really is.”

That is because a core commitment of liberalism is to the individual as the locus of “dignity” and meaning, and hence to individual autonomy as the central normative value. This individualist commitment pervades liberalism–in its conception of liberty and rights, in its emphasis on equality (equality of individuals), and in its commitment to authenticity and the individual conscience. And on these individualistic assumptions, it is demeaning to suggest that someone’s identity depends on a relation to a church or parent or spouse. You are “your own person,” not just someone’s son or daughter or spouse.

But if a person can no longer define who he is by reference to church or family or social position, how is he supposed to understand his identity?...

In these ways, liberalism contributes to the fragility of personal identity that is widely perceived in the Western world. The desperate quest for and obsession with identity–with questions of Who am I really? and How can I be who I really am?–is discernible in various contemporary phenomena: in the proliferating tribalism and identity politics, in the transgender movement, in the effort by millions of people to discover their biological parents or ancestors...

In this context, the question of hate speech takes on a different character. It may now seem misguided and insensitive to describe the injury caused by hate speech as mere “hurt feelings.” Something more basic may seem to be at stake. Thus, suppose that having been freed from the traditional dependence on church or family as the moorings for my identity, I have come to answer the Who am I? question by reference to my race, or my sex, or my sexual orientation. I am standardly classified–and so I come to conceive of myself, perhaps–as a “heterosexual white male.” Now, if someone seems to be denigrating my race, or my sex, or my sexual orientation, they are not merely injuring my interests or hurting my feelings. Rather they are attacking the very bases of my identity.

True, the utterer of hate speech may not inflict any bodily injury on me. And yet, in undermining my identity, he is nonetheless threatening me–is threatening my very existence as the person I am–just as surely as if he were physically assaulting me. Or at least so I might perceive the matter, and so many people today seemingly do perceive the matter.

In this respect, by undermining the bases of identity, a liberal society may be indirectly creating a case for regulation of hate speech that is more urgent than would be true in a non-liberal society in which the traditional bases of identity remain intact and unthreatened, so that the injury caused by hate speech could be passed off as mere offense.

September 22, 2022 in DeGirolami, Marc | Permalink

Monday, September 12, 2022

Barclay on Religious Exemptions and Democratic Self-Governance

Here is Professor Stephanie Barclay's interesting essay on a few issues concerning judicially mandated religious exemptions, for our conference on "Liberalism's Limits." And here is something from the conclusion of Stephanie's piece to give readers a sense of her claims:

Let us next consider religious exemptions offered by judicial bodies in counter-majoritarian ways—meaning judicial actions that might decline to apply duly enacted democratic laws to religious objectors. Can that sort of action ever be consistent with the consent proposition, and with a self-governing free people?...

It turns out that counter-majoritarian judicial actions can manifest in a variety of ways, and some are more consistent with self-governance than others...

The third category through which the judiciary can provide religious exemptions is essentially an evidentiary one. This role rests on the premise that, at the very least, the government may not interfere with religious exercise simply because it views that societal good as unimportant. This type of devaluing of religion can manifest as bemused indifference at best and as open hostility at worst. When a religious objector is thus seeking a religious exemption from a specific application of the law, the judiciary would ensure that the government has demonstrated (with evidence and not mere say so) a need to interfere with religious exercise. Doctrinally, this could operate as a rebuttable presumption of an entitlement to a religious exemption that the government can rebut by doing essentially two things. The government must first show that it does, in fact, have a policy objective other than devaluing religion, and second, that interfering with the voluntary religious exercise is necessary to advance that policy objective.

In many respects, this is how modern strict scrutiny is now applied by the U.S. Supreme Court. To be sure, strict scrutiny speaks in terms of “compelling government interest.” But the judiciary rarely decides cases by weighing the importance of the government interest compared to the importance of the relevant religious exercise. Instead, courts often assume without deciding that the government’s stated objective is compelling. Courts then turn to analyzing whether the stated interest is, in fact, the real interest that motivated the government, and whether the government has demonstrated that it cannot advance that interest without interfering with religious exercise...

When it comes to deciding whether the government actually needed to interfere with the religious exercise to advance its interest, the court often looks to whether the government is being even-handed in the enforcement of its stated policy interest. For example, the U.S. Supreme Court ruled in Roman Catholic Diocese of Brooklyn v. Cuomo that New York’s new and heightened COVID-19 restrictions were not justified in overriding requests for religious exemptions. In so ruling, the Court emphasized that New York had not acted in an even-handed way because the new regulations “single[d] out houses of worship for especially harsh treatment.”[20] In a concurring opinion, Justice Neil Gorsuch stressed that “there is no world in which the U.S. Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”[21]

Later news reports give some credence to the Supreme Court’s skepticism of New York’s evidentiary claims that its policy was necessary to advance health and safety objectives. A February 2021 article in the New York Times indicated that Governor Cuomo’s heightened COVID-19 orders for many houses of worship were not designated by public health officials, but were instead driven by political considerations and implemented by the Governor’s staff. The article reported, “[S]tate health officials said they often found out about major changes in pandemic policy only after [Governor] Cuomo announced them at news conferences—and then asked them to match their health guidance to the announcements.”  Indeed, “the State Health Department was not deeply involved in final decisions” regarding the policy implementing heightened COVID-19 restrictions.[22]

When the government is not being even-handed, it suggests that the government either has other ways of accomplishing its goal without interfering with religious exercise, and/or that the government is devaluing religion relative to other social goods that it is willing to protect even when such goods undermine the government’s stated interest.

This broader, evidentiary-based role for the judiciary is only one of multiple tools that pertain when it comes to the legitimate scope of judicially-provided religious exemptions. But it is one that provides for thicker protection of this right, and thus greater amounts of liberty, while still remaining consistent with a consent-based model of self-government where the judiciary is simply applying democratically elected policies about the relative importance of religion and not making that determination itself. Critics of strict scrutiny or proportionality should perhaps consider whether an evidentiary-focused rather than balancing-focused method of providing religious exemptions warrants support rather than criticisms if ensuring robust religious liberty protections within a self-governing legal regime is the goal.

September 12, 2022 in DeGirolami, Marc | Permalink

Friday, September 9, 2022

Walsh on Juridical Post-Liberalism and Ius

Here is a third contribution, from our Kevin Walsh, to the conference on "Liberalism's Limits." Kevin's essay concerns some distinctions between ius and lex in shaping how we might come to understand various legal claims. A bit:

Religious exemptions and hate speech sometimes run into each other in culture-war disputes arising out of the sexual revolution. The point of contact is dignitary harm. Examples of such disputes include those over goods or services for same-sex weddings, pronoun usage in classrooms, and access to bathrooms based on one’s gender identity rather than biological sex. In these settings, the harms alleged are a mixture of material and dignitary. A material harm is something like the inability to access goods or services or facilities, or a loss of money. A dignitary harm is a feeling of moral stigma or inferiority or exclusion.

Whatever the setting in which a claim of dignitary harm is advanced, the principal moves along the lines suggested above are to:

(1) reject subjective conceptions of dignitary harm, insisting instead on traditional adjacent conceptions that are more objective in nature, such as the right not to be reputationally harmed by false statements of fact, or the right not to be subjected to “extreme and outrageous conduct” that causes emotional distress; and

(2) focus on the precise thing that is being sought, such as the particular flower arrangement, the particular cake, the particular collection of photos and videos, or the particular pronoun or name to use or not to use.

These two moves just set the stage for a legal analysis that attends to the particular features of a jurisdiction’s on-point law.

Within the United States, these moves can be doctrinally supported through well-established principles both of tort law and of First Amendment freedom of speech law. Within the area of religious exemptions more specifically, some scholars have attempted to include dignitary harm among the third-party harms that (they say) should count against granting a religious exemption from anti-discrimination laws. Turning judicial focus away from subjective claims of right and toward particular conduct and speech that would be forced or forbidden helps to highlight the poor fit of dignitary harm claims with more deeply rooted aspects of American law.

September 9, 2022 in DeGirolami, Marc | Permalink

Thursday, September 8, 2022

Pojanowski, "Authenticity and Free Speech"

A second contribution from the panel on our conference's general themes, by Jeffrey Pojanowski, "Authenticity and Free Speech." Here is a fragment to give you a sense of Jeff's themes:

...I would like to suggest that even those who celebrate—or regard as irreversible—modernity’s departure from more fixed, prescriptive ways should pause before drawing a straight line from liberal individualism to free speech libertarianism...

Here I would like to draw on Charles Taylor’s Ethics of Authenticity. In this short series of lectures, he draws a contrast between the “knockers” of modernity and its “boosters”—both of whom presume the current dispensation is one of radical individualism that precludes shared reasoning about ends. One side despairs of this disenchantment and the other welcomes it as a form of liberation and radical self-creation. Against the knockers, with whose laments he sympathizes, Taylor believes there is no “going back” to pre-modern unity and wholeness—a position consistent with his argument in A Secular Age. More importantly for our purposes, however, is his critique of the boosters who would unmoor authenticity from anything besides the whims and desires of the unencumbered self.

In particular, Taylor identifies a tension within the modern understanding of the self and society. On the one hand, the contemporary culture of authenticity involves “creation and construction,” “originality,” “opposition to the rules of society,” and “even potentially to what we recognize as morality.” On the other hand, Taylor contends, authenticity demands more of the person. It requires “openness to horizons of significance” and “self-definition in dialogue” with others...

A healthier understanding of autonomy, on Taylor’s terms, illuminates the difference between Freedom of Speech and BONG HiTS 4 JESUS. At the first pole, Jim Edgerton is in an important sense singular: he is dressed differently, is the only working-class person in the audience, and is the sole dissenter from a popular plan. At the second pole: he is speaking to, and trying to convince, his fellows on a matter of shared concern. Joseph Frederick interjects a nonsensical (most charitably, “playful”) message at a community event because he wants to be on television. We can draw similarly unflattering comparisons to lying about military commendations or disseminating virtual child pornography. A free speech culture that treats the two categories as indistinguishable appears to have veered away from the creative tension that Taylor sees as necessary for a healthy culture of authenticity.

September 8, 2022 in DeGirolami, Marc | Permalink

Ekins, "Some Features of Liberalism in a Censorious Age"

I'll be excerpting and linking from the essays from our conference this summer on Liberalism's Limits: Religious Exemption and Hate Speech. The first contribution to the panel on the conference's general themes is by Richard Ekins, "Some Features of Liberalism in a Censorious Age." A bit from the conclusion:

Liberalism imagines a community united by consent and by a common scheme of principle, in which maximal autonomy is the end and affirmation of the autonomous choices of others is the means. This is neither coherent nor stable, as the transgender controversy confirms. But it does help explain public hostility, on the part of social and political elites, to those who dissent, viz. those who adhere to other faiths and/or refuse to affirm autonomous choices that they think are wrongful. Liberalism primes its adherents to misunderstand religious or other dissenting action as contemptuous of others, failing to perceive the significance of the intentions on which dissenters act, and wrongly running together person and action in a way that misrepresents disagreement as hatred. On this view, dissent from liberal principles is a kind of heresy, which needs to be purged for the good of all, or a kind of treason, in which the dissenters are imagined to be acting in breach of the fundamental grounds of our social and political compact. One sees this perspective in play in the hysterical way in which some liberal commentators respond to (occasional) political setbacks. If liberalism is a false faith, exposing its contradictions is unlikely to change the way in which dissenters are treated, but it may be a necessary step in framing a response.

September 8, 2022 in DeGirolami, Marc | Permalink

Podcast on the Nones and Religious Liberty Pressure Points

Mark Movsesian and I have a new podcast discussing the problem of the Nones for law and religion. Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously dismissed the idea that a solitary seeker–the Court gave the 19th Century Transcendentalist Henry David Thoreau as an example–could qualify as a “religion” for constitutional purposes. “Religion,” the Court explained, means a communal activity, not a purely personal quest. Mark argues in his new paper, The New Thoreaus, that recent demographic changes in America have made this question an urgent one. Perhaps 66 million Americans today are unaffiliated believers–people who, like Thoreau, reject organized religion and follow their own, idiosyncratic spiritual paths–and more and more of them seek “religious” exemptions, including in the context of recent vaccine mandates. Mark examines some of these cases and argues that Yoder‘s dicta was basically correct: although religion cannot be an exclusively collective activity, the existence of a religious community is a crucial factor in the definition of religion for legal purposes. Listen in!

September 8, 2022 in DeGirolami, Marc | Permalink

Tuesday, September 6, 2022

Chantal Delsol, "The Insurrection of Particularities, Or, How the Universal Comes Undone"

At our conference on "Liberalism's Limits: Religious Exemptions and Hate Speech" this summer, sponsored jointly with our longtime colleagues at Università LUMSA in Rome, the distinguished political historian Chantal Delsol gave a keynote address titled The Insurrection of Particularities, Or, How the Universal Comes Undone. You can see the full text of the talk over here (translated by me from the French, with Professor Delsol's permission, or available in the original for French readers). A bit:

On October 18, 2017, the French National Assembly adopted the State Law on Religious Neutrality. Article 11 provides that an accommodation for reasons of religion may be granted if 5 criteria are satisfied: the request is serious; the requested accommodation respects the equality of men and women, as well as the principle of religious neutrality of the State; the accommodation is not excessively constraining; and the requester has actively participated in finding a solution. By the same token, there will be no accommodation with respect to the obligation of all employees of the State to work with their faces uncovered and without wearing any religious sign.

One sees here the extent to which the legislator struggles to preserve as far as possible State neutrality tied to secularism, without actually achieving it, and doing so less and less. We are today on a kind of slope, which is the subject of our conference today: that which was accorded an exception more and more becomes the rule. The Quebecois speak of “reasonable accommodations,” to underline well that one should not surpass the limits of good sense. The example is cited in France of the authorization given for prayer in the streets which stops traffic. So, too, laws forbidding the scheduling of exams for students during the holidays of various religions, which made one journalist say, “soon only February 29 will be left to schedule exams.” The question is in fact posed about the diversity and plurality of exemptions, but that is only a subsidiary question consequent on others. These concessions, which raise a vision of equality solely constituted of privileges, interrogate our vision of the universal, and finally our way of being a society.

Our societies appear more and more to be aggregations of minorities disparate in every respect (they may be social, sexual, religious, or cultural, etc.). And everything happens as if the goal of governments is nothing more than to establish equality among these groups, which, always claiming and becoming indignant about not obtaining enough, monopolize public space. At this point, leaving behind Tocqueville who feared a tyranny of the majority, we could, as Philippe Raynaud put it, [1] fall into a tyranny of minorities.

This is not a superficial phenomenon. It is instead the result of a transformation of our view of the world.

September 6, 2022 in DeGirolami, Marc | Permalink

Wednesday, August 31, 2022

"Traditionalism Rising"

That is the title of my new draft paper, developing work I’ve been at for the last 3-4 years, incorporating some of the decisions from this term, and setting out some justifications for this method of doing constitutional law. Here is the abstract:

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples of traditionalism within this larger, longstanding interpretive method. Contrary to many claims, there is little that is entirely new or unexpected, other than the Court’s more explicit embrace of traditionalism this term than in the past. The paper then distinguishes traditionalism from originalism, focusing especially on what some originalists have called “liquidation.” Finally, it raises and considers one comparatively straightforward and two more difficult problems for traditionalism: (a) the problem of selecting the operative “level of generality” for any tradition; (b) the problem of tradition’s moral justification, offering possibilities based on the connection between enduring practices and (1) human desires, (2) virtues or legal excellences, or (3) natural law determinations; and (c) the problem of traditionalism’s politics.

August 31, 2022 in DeGirolami, Marc | Permalink

Friday, August 5, 2022

"The New Thoreaus"

My colleague, Mark Movsesian, has just posted this new and very interesting paper. It discusses a new and rising pressure point on the legal conception of religion. It also argues for the indispensability of a communal element for legal purposes. Here's the abstract:

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the 19th Century Transcendentalist, Henry David Thoreau, would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly 66 million people—now claim, like Thoreau, to follow our own, idiosyncratic spiritual paths. The New Thoreaus already have begun to appear in the cases, including recent vaccine mandate challenges, and courts will increasingly face the question whether purely idiosyncratic beliefs and practices qualify as religious for legal purposes. In this essay, I argue that Yoder’s insight was basically correct: the existence of a religious community is a crucial factor in the definition of religion. Religion cannot mean an exclusively communal phenomenon; a categorical rule would slight a long American tradition of respecting individual religious conscience and create difficult line-drawing problems. Nonetheless, the farther one gets from a religious community, the more idiosyncratic one’s spiritual path, the less plausible it is to claim that one’s beliefs and practices are religious, for legal purposes.

August 5, 2022 in DeGirolami, Marc | Permalink

Wednesday, July 13, 2022

Vatican Radio Interview on "Liberalism's Limits"

Our conference, "Liberalism's Limits: Religious Exemptions and Hate Speech," which we co-sponsored with LUMSA last week in Rome, was a great success. Mark Movsesian and I will publish some of the conference proceedings after giving the participants time to revise their contributions. In the meanwhile, here is an interesting interview conducted by Radio Vaticana with Professors Cesare Mirabelli (President Emeritus of Italy's Constitutional Court and one of our keynote speakers) and our colleague, friend, and conference co-organizer, Professor Monica Lugato, about the conference and some of our broader joint projects.

The interview is in Italian, but I'm taking the liberty of translating loosely a portion of what Professor Lugato said to give our English-speaking readers a sense of the proceedings: "This conference was in a line of academic projects undertaken jointly by our universities dating from 2014 [and as early as 2012] with the idea of discussing some central and complex themes concerning the problem of living together--of how to live together in societies marked today by substantial pluralism. The objects of this general theme have been conferences concerning aspects of religious freedom as well as the legal and political implications of the concept of tradition. Within this general line of inquiry, it was natural to confront the problems of the limits of liberalism, and in particular liberalism's tendency to render absolute certain individual liberties. Some of the questions asked at the conference might be grouped into two categories: on the one hand, questions about whether liberalism, at least in its classical sense, has exhausted itself; and on the other hand, questions about whether liberal political and legal systems demand certain limits on individual liberties just in order to survive as liberal systems, and what those limits might be."

July 13, 2022 in DeGirolami, Marc | Permalink