Response to Kaveny on framing, "culture wars", etc.

My down-the-hall Notre Dame colleague Cathy Kaveny says that an earlier blog of mine shows that I have "too much energy."  If only!  (Readers familiar with Cathy's up-to-the-minute Colbert-blogging will know that hers is high praise.)  I'm glad that Cathy found my post "interesting" but worry that she might have read it as questioning the merits of "neutral framing", or as reflecting an inability to "see how someone who is reasonable could take the position that they take", or (worst of all) reasoning "instrumentally" in accord with a "culture war mentality."

A few thoughts:  First, I am happy to agree with Cathy that it can often be illuminating "to frame legal and jurisprudential questions in a general way", and to highlight the "structural similarit[ies]" between arguments.  I am not "uncomfortable" with "neutral framing" (How could I be?  After all, like Cathy, I'm a law professor.)  Sometimes, though, such similarities can be more apparent then real.  And yes, of course, the "merits matter . . . to everyone not just to you and me."  Still, "as . . . Catholic scholar[s]", Cathy and I will sometimes need to evaluate carefully the merits of structurally similar (or apparently structurally similar) arguments; in doing so, we are not (and should not) refusing to see how someone who is reasonable could take the position that they take, but are instead trying to determine which position we should take.

Next, Cathy asks whether the "actions of religious groups [are] deserving of special consideration when they break with the common morality?"  For starters, I guess I would say (in keeping with our constitutional traditions) that, as a general matter, religious claims for exemptions are stronger than other such requests.  But, I'd also say (in keeping with, say, Dignitatis humanae) -- and I'm sure Cathy would, too -- that the public authority need not and should not comply with every request for religiously motivated exemptions.  With respect to the particular debate Cathy is addressing -- the applicability of nondiscrimination laws to religious institutions -- it does seem to me (for plenty of reasons that I and many other religious-liberty scholars have elaborated elsewhere) that we can and should distinguish discrimination in employment and benefits by government and commercial entities (which conflicts with the liberal norms that do and should govern such entities' operations) from religious institutions' efforts to operate in accord with the different norms that might govern theirs.  (Obviously, there are limits; there always are.  The content and implications of these different norms will matter.  We can take seriously this distinction in our public policy without endorsing religiously motivated human sacrifice.)

On the matter of the "culture war mentality" and "instrumental analysis."  Culture-warring sounds bad.  Like Cathy, I worry about the tone and rigor of "public moral deliberation" and so about any "mentality" that undermines it.  I worry also, though, that it might be easier for all of us to see public-deliberation-undermining habits of mind, and purely instrumental deployment of lawyerly arguments, in others' interventions than in our own.  As Cathy says, no place on the political spectrum is safe from this temptation.  Cathy worries that "culture warriors make an argument because it advances their view of the way things should be –the merits — on an ad hoc basis–and make a different argument on a different issue."  Maybe "culture warriors", and lawyers generally, do this (we shouldn't, and I didn't); however, they also sometimes move too quickly from the merits of particular arguments to higher-than-warranted levels of generality.

Finally, with respect to the Stupak Amendment:  Cathy is quite right that the "money is fungible" argument could be (and has been) used to "stop students taking Pell Grants to Catholic colleges, or to stop the funding of faith based initiatives – or even to stop the funding of Catholic Charities."  It is not, however, necessarily "inconsisten[t]" to think that money's fungibility (i) warrants support for the Stupak Amendment but (ii) does not provide a good reason to oppose the President's funding of faith-based social-welfare agencies.  It would be inconsistent, I think, if the principle doing the work were "public funds ought never to be used to support of advance activities to which some taxpayers are opposed"; or "even indirect public funding makes taxpayers' complicit in those activities that are so funded, and taxapyers ought not to be forced to be complicit in activities they oppose."  Cathy is right -- a Catholic scholar (like any scholar) should point out such inconsistencies.  My own view on the matter, though, is that the Stupak Amendment is welcome not because it protects the consciences of taxpayers (I do not believe, generally speaking, that public funding of X should be regarded as wrongfully burdening the consciences of taxpayers who oppose X) but because (i) it puts law's pedagogical function to work in the right direction and (ii) it will probably result in fewer abortions.

So much for "too much energy."  I need an espresso. . .