Wednesday, August 2, 2017
Jonathan Rauch has an article in National Affairs that offers a thoughtful take on the roots of today's SSM/religious liberty stalemate:
Culturally, what the country learned from the civil-rights movement is that discrimination is everywhere and always wrong, and therefore must be everywhere and always illegal and unacceptable. In the racial paradigm, discrimination cannot just be minimized. It must be eradicated. Every diner, drinking fountain, and swimming pool open to the public must be open to blacks. In practice, after all, any lesser standard was exploited by racists as a tool of Jim Crow. In principle, the very existence of discrimination diminished African-American dignity.
This lesson contributes to our current predicament, according to Rauch: to religious liberty advocates, once sexual orientation gains any protection under anti-discrimination laws, religious objectors will find zero accommodation for dissenting practices; to gay rights advocates, once religious objectors gain any legal accommodation, gays will be stuck perpetually in a second-class status. Rauch points out that this framing of the issue ignores the fact that "anti-discrimination law as enacted in countless jurisdictions and as interpreted by the courts is nothing close to being as absolute as today's activists and popular culture typically suppose."
Anti-discrimination laws targeting race offer fewer context-based exceptions than disability laws; age, religion and gender protections are at various points in between:
It's important to stress that this is a spectrum, not a hierarchy. It does not rank anti-discrimination rules from "better" or "stronger" at the race end to "worse" or "weaker" at the disability end. It also does not rank the social importance of various groups or the validity of their nondiscrimination claims. It is not a competition. Rather, the spectrum reflects the natural diversity of needs, situations, and histories of groups seeking protection and of the social contexts in which they are embedded.
Can we approach GLBT anti-discrimination protections as a debate over the most appropriate spot on the spectrum (as Utah did), rather than pretend that the spectrum doesn't exist? If so, does that hold promise for other areas where cultural divisions over moral truth have led to zero-sum legal battles?
Monday, July 3, 2017
Harvard law prof Joseph Singer has posted an article titled, Property and Sovereignty Imbricated: Why Religion is Not an Excuse to Discriminate in Public Accommodations. He argues that "public accommodation laws do not infringe on legitimate property rights or religious freedoms; rather, they define the legitimate contours of liberty and property in a society that treats each person with equal concern and respect." From the conclusion:
Property may limit sovereignty, but it can only do so through normative judgments about the legitimate scope of property claims. Sovereignty may define property, but in a free and democratic society it can only do so legitimately by ensuring that free and equal persons are neither attacked nor abandoned in the street with money in their hands.
As such, those who oppose SSM are free not to celebrate same-sex marriages, free not to accept LGBTQ persons as equal members in their churches, free to speak their minds, etc., but "such freedoms end at the market's edge."
First, if you only have time to read one article by Professor Singer this holiday weekend, read his earlier paper, Normative Methods for Lawyers, which is an insightful and important analysis of legal education. It has been required reading for every 1L student at St. Thomas since it was published.
Second, while I have only skimmed his new paper, I think he's focusing on the less interesting question (how can we justify public accommodation laws in the face of religious liberty objections?) instead of what I believe is a more pressing one: how should we craft public accommodation laws in light of our deep religious and moral pluralism? Should we draw a distinction between a provider turning away LGBTQ persons from purchasing "off the rack" goods or services and a provider refusing to contribute customized, creative services to the celebration of a relationship to which they object? For example, what does the relationship between property and sovereignty teach us about the law's appropriate treatment of Barronelle Stuzman?
Sunday, July 2, 2017
As we celebrate our nation this week, it's a good time to take stock of areas in which we have more work to do to measure up to our founding ideals. The Legal Services Corporation recently released a report on “the justice gap” in our country, underscoring the scandalous failure to provide meaningful resources to meet the legal needs of low-income Americans (i.e., those living at or below 125% of the federal poverty level). Among the most striking estimates:
- 86% of the civil legal problems reported by low-income Americans in the past year received inadequate or no legal help;
- 71% of low-income households experienced at least one civil legal problem, including 97% of households with victims of domestic violence or sexual assault, 80% of households with kids under 18, and 80% of households with disabled persons;
- Courts are flooded with unrepresented litigants, even in high-stakes cases -- in New York state courts, for example, 98% of tenants in eviction cases and 95% of parents in child support cases were unrepresented.
Instead of making forward progress, we face an uphill battle even to maintain the status quo. Last week, the House subcommittee responsible for LSC funding proposed a 24% cut to the agency, which is, sadly, an improvement from the White House's proposal to eliminate the LSC entirely. We can do better.
Friday, June 23, 2017
Earlier this week, Christian leaders gathered in Washington to express their support for criminal justice reform. With Attorney General Sessions putting the brakes on the developing bipartisan consensus that we face an incarceration crisis in our country, it is reassuring to see conservative Catholic and evangelical leaders stepping up to affirm that "our over-reliance on incarceration fails to make us safer or restore the people and communities who have been harmed." The initiative is another reminder that Prison Fellowship (founded by Chuck Colson after he served his time for Watergate) remains one of the most effective Christian ministries today, particularly in its capacity to draw conservative Christians' attention to issues that do not often appear on voter scorecards. You can read the "Justice Declaration" here.
Monday, June 12, 2017
I have an op-ed in the Minneapolis Star-Tribune explaining why it is difficult, in light of current American law, to interpret Saturday's nationwide "anti-Sharia" marches as anything other than anti-Muslim. An excerpt:
The religious terms of an agreement do not and should not prevent courts from enforcing it. Just as the rule of law is not threatened when courts apply canon law in handling a bankruptcy case for an archdiocese or enforcing an arbitration agreement based on biblical principles, the rule of law is not threatened when Muslim litigants order their lives in keeping with their faith.
The most recent anti-sharia initiatives reflect a change in strategy — instead of forbidding courts from considering sharia law, they prohibit the enforcement of any foreign law that would result in the violation of a constitutional right. These new laws are of no practical effect — we do not need new statutes to tell judges not to violate the constitutional rights of litigants. (That’s what the Constitution is for.)
These newer initiatives may be without practical effect, but they’re not meaningless. They — like the marches convened on Saturday — are packed with meaning that is not lost on Muslim Americans. The aim of these efforts is not legal reform — it is fearmongering.
Feedback, as always, is welcome.
Senator Kirsten Gillibrand is the latest reminder of an unfortunate lesson the Democrats have drawn from President Trump's election: show your populist streak by swearing more in your speeches.
Jeet Heer now argues in the New Republic that we need more of this, not less:
The new wave of swearing isn’t the cause of a breakdown in civility, but a symptom of a national crisis. These are dire times in the U.S. The president is a manifestly unfit kleptocrat who may have obstructed justice, but he’s not going to be impeached anytime soon because he has the support of his party. The only proper response is a full-scale attack on the political system, which requires rallying the public by letting them know just how foul things are—a task best accomplished with foul language. Trump represents an existential threat to American democracy. In this state of emergency, there’s no room for wimpy euphemisms and lofty rhetoric.
Lovely. Nothing is off limits, of course, because we have never faced such an existential threat to our political system! A leader could invoke "the better angels of our nature" in 1861 because that leader probably knew nothing about national division and discord. If that leader had ever encountered a Trump-sized threat, he'd have been invoking fewer angels and dropping more F-bombs. And why raise a hand to stop the demolition of traditional norms of civility -- norms that, I feel obliged to point out, bear no culpability for the economic dislocation at the root of our current "anti-establishment" moment -- when we can grab a sledgehammer and join in the fun?
Well, at least the election has caused Democrats to rethink their litmus test on abortion rights. Oh wait.
Monday, June 5, 2017
DePaul law prof Julie Lawton has posted a new article, “Teaching Social Justice in Law Schools: Whose Morality is It?” Professor Lawton argues that “requiring law student participation in pro bono and legal clinics serving the indigent, as a condition of their graduation, is an improper imposition of my personal social justice morality upon my students.” She explains:
When there are a limited number of legal clinics at each law school and the majority of those legal clinics are serving low to moderate-income clients, mandating legal clinics is akin to mandating participation in social justice issues, similar to mandatory pro bono service. This mandate of social justice service suggests an unwarranted imposition on a student’s moral independence.
An imposition on “a student’s moral independence?” I always assumed that one core purpose of a profession is to identify and maintain prudent impositions on its members’ “moral independence.” If independence from such fundamental (I thought) moral claims as serving the poor is a virtue to be cultivated among our students, should we also avoid requiring them to participate in any exercise that may risk inculcating within them a respect for the rule of law or commitment to personal integrity? And should we be urging the ABA to pull back from its insistence on imposing particular views on the wisdom of confidentiality, competence, diligence, and candor?
Should law faculty proceed carefully when teaching contested moral and political issues to make sure that students are exposed to the best arguments on all sides? Absolutely. That's a worthy pedagogical objective to ensure that we're training critical thinkers who are effective advocates. It's not about equipping our students for lives of "moral independence," whatever that means. Navigating our biases effectively as teachers does not mean that a law school needs to avoid staking out a position on the basic moral norms that contribute to the animating vision for a particular school or the profession as a whole. We should be explicit and deliberate in discerning and conveying those basic moral norms. This is (I hope) obvious for those of us who work at Catholic law schools, but the conversation about moral norms shouldn't be absent from non-religious law schools either. Such conversations are a big part of what it means to be a profession.
Tuesday, May 16, 2017
I've posted a new paper that might interest MoJ readers, How Should a Law School's Religious Affiliation Matter in a Difficult Market? Put simply, I aim to help deans and faculty "explain why prospective students who are told repeatedly that law school is a risky proposition should care that our law schools have religious affiliations."
Here's the abstract:
For religiously affiliated law schools, a broad and deep understanding of professional formation should lie at the heart of our reason for being and should grow out of our own religious traditions, allowing us to educate the whole person. Articulating and cultivating this deeper understanding of professional formation is essential for deans of religiously affiliated law schools today as we seek to demonstrate the connection between our religious identity and the value proposition our schools offer to our current and prospective students.
Feedback is welcome.
Wednesday, May 3, 2017
I've posted a short essay in tribute to my colleague Lyman Johnson that may be of interest to MoJ readers, especially those who have enjoyed John Inazu's recent work on pluralism. Here's an excerpt:
Lyman has been a prime mover in bringing pluralism to corporate legal theory. He embraces the pluralist label, noting its importance as to both corporate form and corporate purpose. Relying on work regarding mediating structures, Lyman notes that there is "no reason why, with respect to business corporations, there cannot be a pluralism of market-oriented entities designed to advance different purposes," recalling Robert Nisbet’s emphasis on how mediating structures grow out of "shared ‘communities of purpose.’" He insists that "the law should facilitate, not impede, the design of ever more refined firm structures." Pluralism is important to his work.
But Lyman is not just a corporate legal theory pluralist; he’s also a Christian. In his calling as a Christian law professor, it matters not just that he champions pluralism, it matters how he does so.
Thursday, April 13, 2017
For your Holy Week reading, I recommend Wilfred McClay's essay, "The Strange Persistence of Guilt," published in The Hedgehog Review. McClay asks, "How can one account for the rise of the extraordinary prestige of victims, as a category, in the contemporary world?" As a society "that retains its Judeo-Christian moral reflexes but has abandoned the corresponding metaphysics," we retain the burden of sin-shaped guilt but lack "the transactional power of expiation without which no moral system can be bearable." This helps explain why "claiming victim status is the sole sure means left of absolving oneself and securing one's sense of fundamental moral innocence."
Others, including David Brooks, have commented on this essay. I'm most interested in McClay's conclusion:
[T]he persistent problem of guilt may open up an entirely different basis for reconsidering the enduring claims of religion. Perhaps human progress cannot be sustained without religion, or something like it, and specifically without something very like the moral economy of sin and absolution that has hitherto been secured by the religious traditions of the West. . . . without the support of religious beliefs and institutions, one may have no choice but to accept the dismal prospect envisioned by Freud, in which the advance of human civilization brings not happiness but a mounting tide of unassuaged guilt, ever in search of novel and ineffective, and ultimately bizarre, ways to discharge itself.
The capacity of "religious beliefs and institutions" to function as a bulwark against this social phenomenon assumes, of course, that they are not themselves compromised by said phenomenon. In some circles within American Christianity, there has been a tendency to view life in a pluralist society through a victimhood lens. In other circles, the metaphysical foundations of Christian grace appear to have weakened considerably. So as we journey into the Paschal Triduum, it bears noting that we are recalling theological truths that are the best type of counter-cultural claims -- i.e., claims that resonate with an authentic and desperately needed vision of the human person.