Larry Solum has posted a link to, and some thoughts on, a paper of mine, which was recently posted on SSRN, called "Taking Pierce Seriously: The Family, Religious Education, and Harm to Children." I wrote:
The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.
Solum comments:
I was intrigued by Garnett's treatment of the autonomy argument--which he conflates with the notion of "the best interests of the child." Of course, there is a sense in which this conflation is exactly right--the interest of persons in their own autonomy is their "best interest" in a sense, but the terminology is also misleading. Following Rawls we might say that the relevant interest is the interest of persons in developing the two moral powers: "a capacity for a sense of justice and for a conception of the good." (Political Liberalism, p. 19):
A sense of justice is "the capacity to understand, to apply, and to act from the public conception of justice which characterizes the fair terms of cooperation." This sense expresses "a willingness...to act in relation to others on terms that they also can publicly endorse" Id.
A conception of the good includes "a conception of what is valuable in human life." Normally it consists "of a more or less determinate scheme of final ends, that is, ends [goals] that we want to realize for their own sake, as well as attachments to other persons and loyalties to various groups and associations." (PL 19) Rawls says that we also "connect such a conception with a view of our relation to the world...by reference to which the value and significance of our ends and attachments are understood" (Political Liberalism, pp. 19-20)
In particular, when we protect the interest of children in developing the first moral power, we aim to provide persons with the capacity to judge what is in their own best interests and not to impose some particular conception of what particular form of life or conception of the good would constitute those "best interests."
Rick has pointed out some problems with the interesting article by Mark Lilla in Sunday's N.Y. Times Magazine called "Church Meets State." A couple of other criticisms occurred to me. The first is that Professor Lilla, like so many others, sees the American founding as a process by which the Enlightenment thinkers managed the unruly anti-liberal religious sects. (The framers bet, he writes, "that entering the public square would liberalize [religious sects] doctrinally, that they would become less credulous and dogmatic, more sober and rational.") The next step, of course, is to assume that controlling or managing those sects is also the major task for today. But this overlooks another side to the founding, one in which the sects themselves played a leading role. On the very issue of religious liberty that is of such concern to Lilla, there is now a strong historical record (assembled by Michael McConnell, William McLoughlin, and others) that it was the fervent and "narrow" evangelical sects that provided the biggest push for religious liberty and disestablishment in the years 1776-1833; meanwhile, a lot of more "enlightened" thinkers supported retaining established churches of a mild, rationalistic variety. If "enlightened" thought often sought to retain established churches, then just maybe it should not be the sole guide to the meaning of the American "liberal democratic order" that swept those churches away. Maybe the fervent believers also have something central to tell us about the meaning of the American experiment.
Second, although Professor Lilla points out incisively how and why liberal religion has declined and given way to fervent evangelical religion, he seems ultimately to regard this as a wholly dangerous thing. (That's why, he says, citizens need to be "more viligant about policing the public square" these days.) But the fervent evangelical spirit that has given us anti-evolution crusades has also given us movements such as abolitionism -- which was, indeed, a direct outgrowth of one of the Great Awakenings whose "ecstatic" and "credulous" spirit Professor Lilla warns about. Take also the civil rights movement, the touchstone for all modern social-justice efforts. It owed most of its energy to the fervor of an "ecstatic" and pretty "literalistic" African-American church; and much of Martin Luther King's religious depth and perseverance came from his embrace of some very un-rationalistic, un-Enlightenment Christian concepts like the pervasiveness of human sin and the high costs that must be paid for redemption. (These elements in the civil rights movement are documented in a great recent book by David Chappell called Stone of Hope: Prophetic Religion and the Death of Jim Crow.)
My former law faculty colleague, David Smolin, has written:
It is very nice for academics to talk about the dangers of making absolutist, divisive, sectarian religious statements in the political arena, but in fact those sorts of statements are necessary if people are going to be motivated to pay the cost of doing what is right, whether the subject is race, the poor, the environment, or abortion. The problem is not merely determining or debating the "right" course of action, but more broadly one of fighting the constant temptation to avoid paying the costs associated with doing what is right.
I think that the political Religious Right has many faults, including overlooking many issues of common good, such as the environment and social concern for the poor, that should be priorities in a Christian social ethic. But maybe some of the fervor that the Religious Right brings to an issue like abortion is, as in the other cases above, quite valuable in countering the inertia that keeps us from addressing that moral problem.
Thanks to Larry Solum, here is a link to an interesting looking paper by Eric Posner and Adrian Vermeule, called "Should Coercive Interrogation be Legal?" Here is the SSRN abstract:
Most academics who have written on coercive interrogation believe that its use is justified in extreme or catastrophic scenarios but that nonetheless it should be illegal. They argue that formal illegality will not prevent justified use of coercive interrogation because government agents will be willing to risk criminal liability and are likely to be pardoned, acquitted, or otherwise forgiven if their behavior is morally justified. This outlaw and forgive approach to coercive interrogation is supposed to prevent coercive interrogation from being applied in inappropriate settings, to be symbolically important, and nonetheless to permit justified coercive interrogation. We argue that the outlaw and forgive approach rests on questionable premises. If coercive interrogation is ever justified, and the benefits outweigh the risks of error and unintended consequences, it should be legal, albeit strictly regulated. The standard institutional justifications for outlaw and forgive - rules/standards problems, slippery slopes, and symbolism - are unpersuasive.
I'd welcome others' reactions. One quick thought that occurs to me: It is not actually the case, is it, that the "outlaw and forgive" approach necessarily reflects a view that coercive interrogation is "justified" in hard cases? Perhaps it reflects the different view that coercive interrogation in usch cases might be "excused"? I realize that "necessity" is generally regarded as a "justification" defense, but maybe that's not what is really going on?
Last week a federal district court in Nebraska, in an opinion here, struck down the state constitution's ban on recognition of same-sex marriages, civil unions, and domestic partnerships. The ban had been added to the state constitution by voter initiative in 2000. Eugene Volokh has a comprehensive critique of the decision here. Whatever one's perspective on recognition of same-sex unions or marriage as a policy matter -- and Eugene in no way belongs to the anti-gay-rights movement -- his post demonstrates why the court's decision is at best a big overreach as a matter of constitutional interpretation, and on some of its rationales is simply frivolous.
This essay by Philip Kenicott, "Judge Not," from today's Washington Post, asks whether (what the author sees as) the outbreak of hostility to the persons and work of judges in popular discourse -- particularly among religious conservatives -- should worry Catholics, academics, and others who -- like judges -- inhabit spheres that are "protected" from the "leveling power of untrammeled democracy":
It's curious . . . the degree to which anti-judicial rhetoric borrows the language of anti-Catholicism. It's especially odd, today, that these (perhaps subliminally) anti-Catholic ideas persist in a debate that has aligned Catholics with traditional social conservatives over cases concerning abortion, homosexuality and euthanasia. The Catholic Church, though it may today be in agreement with conservatives on many social issues, has long been on the receiving end of rhetoric remarkably similar to that being directed at the federal judiciary. It has been derided as anti-democratic, for standing apart from the mainstream of American life, for importing "foreign" elements into American culture, for being intellectually superior, and governed by rules and values characteristic of an arrogant, priestly class.
Is this anti-Catholic terminology merely accidental? All the derisive talk of elite priesthoods is probably meant as no particular slight to Catholics. But that might be of little comfort if the interests of the Catholic Church and anti-judiciary activists ever diverge -- if, for instance, the Church (or any other church) ever needs to rely on the federal judiciary to protect it from legislative persecution. And if the anti-elitist rhetoric directed at judges today isn't just an occasional flare-up of ire sparked by particular decisions, but part of a broader ideological agenda within American public life, then other institutions that resemble the judiciary, and the Catholic Church, may have reason to be concerned as well.
Academia, which is also an institution set apart from the mainstream of American life, given to unpopular pronouncements and governed by rules that elevate and protect for life the tenure of often arrogant individuals, has already found itself under legislative attack. The leveling power of untrammeled democracy has a voracious appetite -- which is one of the arguments for creating spheres that are protected from its power.
Kennicott makes an interesting point, though it should be noted that there is no inconsistency between (a) worrying about the "voracious appetite" of the "leveling power of democracy" and (b) worrying about the decisions and attitude of judges who appear to be exceeding the scope of their (arguably un-democratic) power. The complaint about judges is (or, at least, should be) not that they are judges, or that they are not elected, or that their rulings go against popular opinion; it should be that some are handing down excessively ambitious and legally incorrect rulings in contexts and with respect to issues to which their authority does not properly extend. To think that not-democratically-accountable power is worrisome in some contexts (for example, the debate over whether or not a community should embrace a sweeping abortion license) is not (necessarily) to endorse "democracy" in all other contexts (for example, the debate over the divinity of Christ).
In Sunday's New York Times, Mark Lilla had this review of Gertrude Himmelfarb's latest, "The Roads to Modernity."
[T]he argument is that, unlike the anticlerical philosophes of the French Enlightenment, the British and American thinkers of the 18th century looked favorably on religion as a support to modern democracy. They saw that it could assist in forming good citizens by providing moral education and helping people be self-reliant. By teaching people to work, save and give, religion could prove a ballast to the self-destructive tendencies of both capitalism and democracy. There is, therefore, nothing antimodern or even antiliberal in encouraging American religion and making room for it in public life.
As intellectual history, this is a sound thesis. It is, however, incomplete, which is why we should be wary of drawing contemporary lessons from it. In truth, the leaders of the British and American Enlightenments shared the same hope as the French lumières: that the centuries-old struggle between church and state could be brought to an end, and along with it the fanaticism, superstition and obscurantism into which Christian culture had sunk.
The review proceeded pretty well, I thought. But it ends badly:
The leading thinkers of the British and American Enlightenments hoped that life in a modern democratic order would shift the focus of Christianity from a faith-based reality to a reality-based faith. American religion is moving in the opposite direction today, back toward the ecstatic, literalist and credulous spirit of the Great Awakenings. Its most disturbing manifestations are not political, at least not yet. They are cultural. The fascination with the ''end times,'' the belief in personal (and self-serving) miracles, the ignorance of basic science and history, the demonization of popular culture, the censoring of textbooks, the separatist instincts of the home-schooling movement -- all these developments are far more worrying in the long term than the loss of a few Congressional seats.
No one can know how long this dumbing-down of American religion will persist. But so long as it does, citizens should probably be more vigilant about policing the public square, not less so. If there is anything David Hume and John Adams understood, it is that you cannot sustain liberal democracy without cultivating liberal habits of mind among religious believers. That remains true today, both in Baghdad and in Baton Rouge.
Now, I yield to no one when it comes to eye-rolling about "End Times" literature, but the suggestion that, say, the (entirely reasonable) desire of many faithful citizens to home-school their children "in Baton Rouge," or the (entirely reasonable) frustration of many sentient citizens with "popular culture," has any instructive connection with the death-dealing fanaticism of those who sever captives' heads on videotape in Baghdad is, well, unconvincing. I agree with Lilla that (a) religious beliefs are relevant to political capacities and practices and, therefore, (b) religious beliefs matter. But I'm more concerned about Lilla's call for Times readers to "polic[e] the public square," and the threat such a call poses to democracy, properly understood, than I am about the persistence of belief in miracles. Nor, it should be noted, and contrary to Lilla's suggestion, is it the case that movements away from "mainline" liberal Christianity represents a "dumbing down" of the Faith.
Michael Scaperlanda invited us to read Russell Shaw's op-ed piece in the Wall Street Journal (here.) I read it. In my judgment, the editors of Commonweal and The Tablet, whose views I posted below (here and here), make a much more compelling case. In any event, readers of this blog may be interested in this piece, from the May 14th issue of The Tablet: The Thomas Reese Affair by Robert Mickens (here).
Sunday's Post included this profile of Berkeley law professor and intelligent-design theorist Phillip Johnson. A good, helpful read:
For centuries, scriptural literalists have insisted that God created Heaven and Earth in seven days, that the world is about 6,000 years old and fossils are figments of the paleontological imagination. Their grasp on popular opinion was strong, but they have suffered a half-century's worth of defeats in the courts and lampooning by the intelligentsia.
Now comes Johnson, a devout Presbyterian and accomplished legal theorist, and he doesn't dance on the head of biblical pins. He agrees the world is billions of years old and that dinosaurs walked the earth. Evolution is the bridge he won't cross. This man, whose life has touched every station of the rationalist cross from Harvard to the University of Chicago to clerk at the Supreme Court, is the founding father of the "intelligent design" movement.
Super-blogger Andrew Sullivan offers some (unfortunately) misguided thoughts about the "separation of church and state". Commenting on Archbishop William Levada's (unremarkable) observation that "from the perspective of society, the tendency to 'privatize' the moral dimension, so common to America with its slogan 'separation of church and state,' can potentially have disastrous consequences." Sullivan asks, "for Levada, church-state separation is now merely a 'slogan,' not a fundamental principle of a free society? Another sign of where Benedict is going."
In fact, the "separation of church and state", properly understood, is -- in Sullivan's words -- a "fundamental principle of a free society." And, as Sullivan knows very well, Archbishop Levada (and Pope Benedict) would agree with this statement. It is also a fact, though, that in American public discourse and constitutional law, "the separation of church and state" often functions as a mantra, a misleading figure of speech, and an often anti-Catholic "slogan." (See, e.g., Philip Hamburger, The Separation of Church and State). Sullivan, I'm sure, knows this very well, too. I suspect, in fact, that Sullivan agrees with what Archbishop Levada actually said, namely, that the "separation of church and state" is often misunderstood as a principle of "privatization," according to which religious belief, expression, and commitment are required by democratic values to remain outside public discourse and civil society. Nothing about a "free society" requires -- in fact, a free society cannot tolerate -- such a principle.
