That's the title of Rick Garnett's contribution to a new volume edited by my Emory colleagues Frank Alexander and John Witte: Christianity and Human Rights: An Introduction (Cambridge 2010). Here's the abstract:
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What is the “right to freedom of religion,” a right which our leading
human-rights instruments commit us to protecting, and what are the legal and
other mechanisms that will sustain and vindicate our commitment? Some mechanisms
might be better (or less well) designed for the purpose and so might work better
(or less well) than others; some actors and authorities might be more (or less)
reliable and effective protectors than others. In other words, the project of
protecting human rights – including the right to religious freedom – involves
not only reflecting on human goods and goals, but also wrestling with questions
about institutional design and competence.
This chapter considers both
the content of religious freedom and the ways it is protected and promoted. It
proposes, first, that the “right to freedom of religion” belongs not only to
individuals, but also to institutions, associations, communities, and
congregations. Just as every person has the right to seek religious truth and to
cling to it when it is found, religious communities have the right to hold and
teach their own doctrines; just as every person ought to be free from official
coercion when it comes to religious practices or professions, religious
institutions are entitled to govern themselves, and to exercise appropriate
authority, free from official interference; just as every person has the right
to select the religious teachings he will embrace, churches have the right to
select the ministers they will ordain.
Next, it is suggested that the
right to church autonomy is a structural mechanism for protecting both the
freedom of religion and human rights more generally. The relationship between
the enterprise of protecting human rights and religious communities’ right to
self-determination is a dynamic, mutually reinforcing one. Human rights law, in
other words, protects church autonomy – it protects the freedom of religious
communities to govern and organize themselves, to decide religious matters
without government interference, to establish their own criteria for membership,
leadership, and orthodoxy, etc. – and, in turn, church autonomy promotes the
enjoyment and exercise of human rights. This mechanism is, John Courtney Murray
thought, “Christianity’s basic contribution to freedom in the political order.”
If we understand and appreciate this contribution, we will better understand and
appreciate that often misunderstood and misused idea, “the separation of church
and state.”
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Rick's paper is downloadable here.
In an essay, posted on Public Discourse this morning, I weigh in on the immigration law recently enacted in Arizona, putting that problematic law in the context of a quarter century of failure by the federal government to stem the tide of illegal immigration. Recognizing the dignity of every human being and the duty of the state to protect the common good of its citizens, I then offer a three-pronged solution to our current immigration mess.
Comments are welcome!
Monday, May 10, 2010
Today’s The New York Times online commentary [HERE] has an important and fascinating critique authored by Stanley Fish on David Strauss’s new book The Living Constitution. I think Fish is largely correct in his criticism of Strauss’s de-emphasis of the Constitution’s text, and this is captured in the title of his commentary, “Why Bother With the Constitution?” But, in fairness to Strauss, I also must read his work in its entirely to see if there is something else in his presentation. But, back to the Constitution.
Yes, why bother with it? Fish properly notes that we’ll likely be hearing a good deal about the Constitution as Solicitor General Kagan’s nomination to be an Associate Justice of the Supreme Court advances in the coming weeks.
Fish is largely concerned with the ceremonial role that he sees Strauss granting to the text of the Constitution; moreover, Fish concludes that the real flesh of our basic law, as understood by Strauss and presented in the book’s argument, is not the text of the Framers but “precedents.” Fish’s concern of Strauss’s position concludes that what is at stake is not careful interpretation of the norms of our basic law, i.e., the Constitution, but appropriation not only of precedents but also inferences. In short, Fish raises a crucial question and answers it: “Why is Strauss trying to take the Constitution out of the constitutional interpretation loop? Because he wants to liberate us from it as a constraint.” Fish later notes that Strauss concedes that the Constitution “is valuable because it provides common ground among the American people,” but, is that all? Fish further states that this common ground is not established on the foundation of the Constitution’s text but on what someone may wish it to mean had this person actually done the drafting of the Constitution.
I sympathize with many of the concerns raised by Fish. The words of laws—be they in the Constitution or statutes or regulations—mean something. Moreover, they should have far more durability than the fancy of the passing moment. Otherwise, catchy phrases like “penumbras” or “the mystery of life” become the Constitution and the Constitution itself becomes misplaced. Good legal interpretation must begin with the text that is authoritative. Good interpretation of the Constitution therefore must begin with the words its drafters gave us. Yes, their thoughts, their words, the objectives they broadly identified by choosing the language finally used, mean something not only at the beginning of the interpretative enterprise but also at its end. The necessary continuity with the law’s normative requirements identifying rights and justifying claims, recognizing obligations and naming duties must be coherent with the official text and not something else. Thus, good interpretation also must end with the words the same drafters gave us. If some find this method too constricting to the meaning of law, they should take stock of the legitimate processes that exist to modify it through the amendment process.
Otherwise, to borrow from John Marshall, it is not a Constitution which we are expounding but something else. Like Stanley Fish, I’ll cast my vote for the Constitution that has endured because it is the one I can read, not the one I cannot.
RJA sj
That's the title of a new essay by MOJ-er Tom Berg, which will appear in a forthcoming issue of the Northwestern Journal of Law and Social Policy. Forgive me if this piece has already been noted here at MOJ. Tom, as MOJ readers may remember, supports granting access to civil marriage to same-sex couples, but Tom also supports accommodating religious objectors to same-sex marriage. Here's the abstract:
_________________________
This Article, from a symposium keynote talk, presents a case for
adopting significant religious accommodations for objectors to same-sex
marriages. My thesis is that there are important common features between
the arguments for same-sex civil marriage and those for broad
protection of religious conscience. Even though the two are pitted
against each other in disputes, the strongest features of the case for
same-sex civil marriage also make a strong case for significant
religious-liberty protections for dissenters. One implication is that
there are good reasons for recognizing same-sex civil marriage. But the
other implication is that if a state does so, it should enact strong
religious accommodations too, as a matter of consistency and
even-handedness.
Among the parallels, both same-sex couples and
religious believers claim that their conduct stems from commitments
central to their identity – love and fidelity to a life partner,
faithfulness to the moral norms of God – and that they should be able to
live these commitments in a public way, touching all aspects of their
lives. If gay couples claim a right beyond private behavior –
participation in the social institution of civil marriage – so too do
religious believers who seek to follow their faith not just in houses of
worship, but in charitable efforts and in their daily work lives.
Therefore, I argue, religious accommodation ought to protect not just
churches and clergy, but also religious nonprofit organizations like
Catholic Charities, and as small businesses like the wedding
photographer providing personal services related to a marriage.
_________________________
Tom's fine paper is downloadable here.
The new issue of the Columbia Journal of Gender and Law—Volume
19, Number 1, 2010—is a “Symposium Volume Honoring the Contributions of Martha
Nussbaum to the Scholarship and Practice of Gender & Sexuality Law”.
Nussbaum’s formidable colleague
at the University of Chicago School of Law, Mary Anne Case, has a contribution in the
volume titled “A Lot to Ask: Review
Essay of Martha Nussbaum’s From Disgust
to Humanity: Sexual Orientation and
Constitutional Law” (pp. 90-124). I
just read Case's contribution, and In my judgment, Case’s critique of Nussbaum’s “disgust”
argument is quite powerful.
Case’s critique is, if anything, more powerful
given that Case herself, self-described in the piece “as a feminist theorist
and constitutional law scholar” (p. 120), declares that “[i]t is my
profound hope, as it is Martha Nussbaum’s, that in our lifetime the U.S.
Constitution will be held to guarantee equal marriage rites and rights to couples
regardless of their sex” (p. 124).
Case's article is available here.
Those MOJ readers and visitors to Villanova who had the privilege of knowing Mattei Radu, a 2006 graduate of Villanova Law, will share our sadness that Mattei died on Friday (of natural causes). Mattei attended nearly every CST conference, Scarpa conference, and the like, and he made a point of meeting and engaging as many speakers as possible. Mattei enjoyed good debate on the weightier matters of the law. A fine student at Villanova (including in my seminar on sovereign immunity), he then went on to further graduate studies at the LSE and, this year, NYU. Mattei had also started publishing, including recently in the
Villanova Law Review, on topics related to Catholic social doctrine. Mattei was an ardent and tireless pro-life advocate, a young man (not yet thirty years old) possessed of striking
joi de vivre all around. A tireless traveler, he used to send me postcards from churches and shrines all around the world, ones he knew I would find especially beautiful or meaningful. A first obituary, which offers a little more of a portrait, is
here. Ma
ttei had been worki
ng towa
rd being a la
w
professor,
but
, as much as I relish
my w
o
rk as a law professor,
I'
l
l go out o
n a limb and spe
culate tha
t M
attei h
as better work
now
. Ev
ery death, though, and perhaps
espe
cially one
of a young man so alive wit
h the faith and wit
h good wor
ks, re
minds u
s why Jesus w
ept at
Lazarus' death.
