Wednesday, July 7, 2010
Followup to Rob Vischer's post yesterday
Here is Rob's post. And here is the followup, in the form of commentary by Ross Douthat.
The Prudence of Law School Administration Regulation of Law Student Organizations in the Aftermath of the Hastings Case (Part Two)
Yesterday (post here), I offered several principled reasons why law schools should provide ample room for student organizations to define their own purpose and values, including expectations for members and leaders. In addition, several practical reasons counsel a law school to hesitate before following the lead of the Hastings College of Law in imposing a uniform “accept-all-comers” rule. In its decision in Christian Legal Society v. Martinez, the Supreme Court majority did not offer unqualified approval for the “all-comers” rule in all circumstances and all applications:
First, as the Supreme Court majority acknowledged (and remanded the case for further consideration) and as the dissenting opinion emphasized, any policy regulating law school student organizations must be applied evenly, not selectively, and in a viewpoint neutral manner. Thus, a law school may not forbid the Christian Legal Society chapter from limiting voting rights to students who share the Christian faith, while allowing the student Outlaw group to limit leadership to students who promote “gay pride” or who endorse “same-sex” marriage. Indeed, because the Court’s majority opinion is somewhat opaque on what viewpoint neutral membership standards may be adopted consistent with an “all-comers” policy, it is not clear that a student Running Club may require members to actually go running or that a student Pro Bono Service Project could expect members to actually participate in pro bono projects, at least outside of attendance at regular club meetings inside the law school building.
A law school adopting an “accept-all-comers” policy will have to be scrupulous in following the same policy strictures for all student organizations, however heavy-handed that may end up being in practice. And therein lies a substantial degree of risk for a law school administration. Because each student group is different and has its own purpose and goals, what makes sense for one group in running a meeting or planning activities, and in adopting requirements for membership, may range from the irrelevant to the self-defeating for another. And yet the administration of an all-comers policy has to apply a one-size-fits-all standards for membership and leadership eligibility for all student organizations. Any slip away from such uniformity in a particular case would slide the public school back into what is forbidden constitutional territory, even for the Supreme Court majority.
Because law school administrators often are perceived as having favorites among students and student groups, and because students also tend to be aware of ideological leanings among administrators and faculty, students (and other faculty members) will be on the sharp look-out for any evidence of inequality in application of regulations of student groups. As was discussed yesterday, the result may be a flattening out of student groups in purpose and thus a decline in their vitality. But that’s the price a law school would choose to pay if it insists upon controlling the membership rules for student groups rather than letting the marketplace of ideas flourish without administrative regulation.
Second, the Supreme Court majority agreed that it would be an abuse of an “all-comers” policy for a law school to stand idly by while students opposed to the principles of a student group attempted to infiltrate and stage a hostile take-over of that group. The Court majority said: “If students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions, Hastings presumably would revisit and revise its policy.” Justice Kennedy in concurrence also agreed that a constitutional challenge would have merit “if it were shown that the all-comers policy was either designed or used to infiltrate the group or challenge its leadership in order to stifle its views.” Thus, the continued legitimacy of a law school all-comers policy turns on how it is actually used by students and how disputes about student group messages play out.
Troubling opinions in the UK's asylum case
Michael P. brings us news of an asylum case out of the UK, which grants asylum to homosexuals based on their membership in a particular social group. Under the law, a person can be granted asylum if they are threatened with persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." (Michael P., forgive me in advance for my lack of technical nuance here, but the differences between asylum and nonrefoulment aren't relevant to this discussion).
Setting aside the important questions of a) whether the amorphous category of "particular social group" ought to be extended to include practicing homosexuals and b) in what circumstances "prosecution" under a country's law constitutes "persecution," Lord Hope's opinion contains some troubling reasoning.
First, in paragrah 2, he states: "fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another."
What gives this court the authority to determine whether a particular religious interpertation is misguided? And, by what criteria is this secular court declaring that a particular interpretation of Islam or a particular group of Christians is misguided in their religious doctrine? Rather than just sticking to the secular law of England, this court has gratuitiously opined on theological matters. And, I suspect that this sort of foray, concluding that the religious doctrine of "ultra-conservative" Muslims and "right-wing evangelical Christians" is "misguided" has application far beyond this aslylum case. Any thoughts?
Second, in Paragraph 11 (highlighted by Michael P.), Lord Hope states: "The group is defined by the immutable characteristic of its members’ sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a person’s race. But, unlike a person’s religion or political opinion, it is incapable of being changed. To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are....."
Is Lord Hope suggesting that acting on one's sexual impulse is more important than the allegiance we owe to God as we understand God? Religions can be changed, but sexual orientations (and the corresponding behavior) can't he says. I know people who have changed their sexual orientation and I also know people - both heterosexuals and homosexuals - who are celibate, but I'll readily admit that in our culture I have known many more people who have changed their religion than have changed their sexual orientation or who have decided to remain celibate. But that seems largely beside the point. Is this Court really implying that "religion" is less fundamental to a person's identity than the ability to act on one's sexual orientation simply because it can be changed? Or, am I reading too much into this? If I am reading this accurately, what are the implications of this sort of reasoning outside the asylum context?
Interesting news from the United Kingdom
MOJ friend Aidan O'Neill sends this our way:
MOJ readers might be interested in the attached decision out today from the UK Supreme Court (here) on the issue of whether gay people can be required/expected under international asylum/refugees to conceal their sexuality/pass as straight to avoid State sponsored but usually religiously inspired persecution in their home countries. The UK Supreme Court thinks not. Some aspects of this case may have some resonance in on-going US litigation relating to discrimination and same sex marriage, not least for the comparisons made by the justices between persecution on grounds of religion (Catholicism) and ethnicity (being Jewish) and persecution of grounds of sexuality.
For example the Deputy President of the Court,, Lord Hope observes:
“2. For many years the risk of persecution in countries where it now exists seemed remote. It was the practice for leaders in these countries simply to insist that homosexuality did not exist. This was manifest nonsense, but at least it avoided the evil of persecution. More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another. The death penalty has just been proposed in Uganda for persons who engage in homosexual practices. Two gay men who had celebrated their relationship in a public engagement ceremony were recently sentenced to 14 years’ imprisonment in Malawi. They were later pardoned in response to international pressure by President Mutharika, but he made it clear that he would not otherwise have done this as they had committed a crime against the country’s culture, its religion and its laws. Objections to these developments have been greeted locally with derision and disbelief....
10. ... As Lord Rodger points out in para 42, regulation 6(1)(e) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) recognises as clearly as can be that a group based on a common characteristic of sexual orientation may be included in a particular social group that is in need of international protection.
11. The group is defined by the immutable characteristic of its members’ sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a person’s race. But, unlike a person’s religion or political opinion, it is incapable of being changed. To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are.....
14. But coupled with an increasing recognition of the rights of gay people since the early 1960s has come an appreciation of the fundamental importance of their not being discriminated against in any respect that affects their core identity as homosexuals. They are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight.”
And Lord Rodger says this:
“62. A Jew would not lose the protection of the {Refugee] Convention because, in addition to suffering state persecution, he might also be subject to casual, social anti-semitism. Similarly, a gay man who was not only persecuted by the state, but also made the butt of casual jokes at work, would not lose the protection of the Convention. It follows that the question can be further refined: is an applicant to be regarded as a refugee for purposes of the Convention in circumstances where the reality is that, if he were returned to his country of nationality, in addition to any other reasons for behaving discreetly, he would have to behave discreetly in order to avoid persecution because of being gay?
Tuesday, July 6, 2010
The Prudence of Law School Administration Regulation of Law Student Organizations in the Aftermath of the Hastings Case (Part One)
Because it was such a dramatic setback for constitutionally-protected freedom of expression and association on public university campuses, the Christian Legal Society v. Martinez case naturally has been been the focus of attention primarily in terms of the constitutional questions resolved (incompletely) by the Supreme Court. Now as law schools, law faculties, law students, and others digest the opinion, the next and open question will be whether many law schools choose to follow the lead of the Hastings College of Law. Even if they are constitutionally permitted to do so, will (and should) law schools want to adopt a policy for recognized student organizations that requires any and all students to be accepted as full voting members, full fledged participants, and leaders, regardless of attraction to the purpose and support for the message of the group?
Despite the constitutional door opened to an “accept-all-comers” policy (at least in the abstract and with many questions of application remaining), we still may hope that many or most law schools will reject the invitation to intrude so directly into law student association and expression. Even the Supreme Court majority stopped short of endorsing the wisdom of the Hasting accept-all-comers policy, reminding readers that the constitutional “permissibility” of a school policy may not correspond to the “advisability” of that policy.
For reasons of both principle and practical judgment, law schools would be well-advised to freely allow students to come together and establish the structure, membership, and leadership of student organizations according to their own shared interests and values. In today’s post, I address the principled side of the matter, that of protecting freedom of association and expression and of promoting genuine diversity within the law school. In tomorrow’s post, I’ll address the likely administrative headaches and continuing risks of litigation that would attach to those law schools that attempt to apply an “all-comers” rule to student groups in a constitutionally valid manner.
The law school that prides itself on genuine and meaningful diversity and that wishes to fully embrace freedom of expression will turn away from the political or ideological temptation to restrict student organizations according to a uniform formula. Especially in the public law school, law students should be allowed considerable leeway in setting principled standards for membership and leadership, including demanding a commitment to certain beliefs and expectations that define the group.
By extending anti-discrimination rules beyond appropriate bounds of restricting the acts of the law school as an institution and thereby imposing rules of uniformity on student groups, a law school would create a needless conflict between principles of equality and freedom of association and expression. Instead, law school should embrace what “Gays and Lesbians for Individual Liberty” in their amicus brief before the Supreme Court in Christian Legal Society v. Martinez described as “[a] confident pluralism that conduces to civil peace and advances democratic consensus building.” As this amicus explained in that brief, law schools should “permit the marketplace of ideas to work, not pretermit debate through misapplication of nondiscrimination rules in an expressive forum.”
A law school should avoid a rigid policy of enforced formal diversity that in practice crushes true diversity. A sincere commitment to meaningful diversity, not just in appearance but in thought, should lead a law school to permitting those with diverse perspectives to think and act in accordance with their own principles, absent some dangerous disruption to essential order. People of shared values should be able to join together in promoting the principles or identity of the group without being accused of invidious discrimination. In another amicus brief, a coalition of minority religious groups including the American Islamic Congress, the Coalition of African-American Pastors, and the Sikh collation offered this important reminder: “[I]t is fundamentally confused to apply a rule against religious discrimination to a religious association.”
Notre Dame's Fr. Richard McBrien on the Phoenix abortion controversy
Here.
Treating scientific statements as apolitical
William Saletan weighs in on Elena Kagan's "reframing" of ACOG's medical analysis of partial birth abortion.
Rise of the Religious Left
By Charles M. Blow
Op-Ed, NYT, July 2, 2010
Which political party’s members are most likely to believe that Jesus will definitely return to earth before midcentury? The Republicans, right? Wrong. The Democrats.
This was revealed by a report issued last week by the Pew Research Center for the People and the Press.
On the surface it may seem surprising, but, in fact, it’s quite logical. Blacks and Hispanics, two highly religious groups, are a growing part of the Democratic Party. A June 2009 Gallup report found that blacks and Hispanics constituted 30 percent of the party. Recent polling by Pew puts the number at 37 percent.
According to a Gallup report issued last Friday, church attendance among blacks is exactly the same as among conservatives and among Republicans. Hispanics closely follow. Furthermore, a February Gallup report found that blacks and Hispanics, respectively, were the most likely to say that religion was an important part of their daily lives. In fact, on the Jesus question, nonwhite Democrats were roughly twice as likely as white Democrats to believe that He would return to earth by 2050.
Add to this the fact that, according to the 2009 Gallup report, 20 percent of the Democratic Party is composed of highly religious whites who attend church once a week or more, and you quickly stop second-guessing the Second Coming numbers.
Welcome to the Religious Left, which will continue to grow as the percentage of minorities in the country and in the party grows.
People often ask whether the Republican Party will have to move to the left to remain viable. However, the question rarely asked is whether the growing religiosity on the left will push the Democrats toward the right.
At the moment, that answer is both yes and no. On the one hand, unlike John Kerry before him, Barack Obama made a strong play for the religious vote on his march to the White House. It worked so well that it’s likely to continue, if not intensify, among Democratic candidates. On the other hand, the religious left is not the religious right. The left isn’t as organized or assertive. For the most part, it seems to have made its peace with the mishmash of morality under the Democratic umbrella, rallying instead around some core Democratic tenets: protection of, and equality for, the disenfranchised and providing greater opportunity and assistance for the poor.
The unanswerable questions are whether these highly religious, socially conservative Democrats will remain loyal to a liberal agenda as they become the majority of the party and their financial and social standing improves. Or whether Republicans will finally make headway in recruiting them. The future only knows.
Then again, the world as we know it may not have much of a future if, as these Democrats believe, a deity will soon descend from the sky.
Christianity Going South
Sightings
Christianity Going
South
-- Martin E.
Marty
Sightings authors often comment on religion in the United States rather than "the rest of the world," but through the years have shown regularly how artificial or at least permeable such geographical distinctions are when it comes to religion. Philip Jenkins, Mark Noll, Lamin Sanneh, and others reveal the same, with important books on what Jenkins calls “The Next Christendom” and Noll describes as “The New Shape of World Christianity: How American Experience Reflects Global Faith.” They see the Christian population “going South.” In American slang, “going south” means going down to an inferior position. But in demographic terms, the capital “S” signals going up, as the masses of Christians are doing, while Christian power slides from Europe and North America to Africa, Latin America, and other points South.
It is impossible to quarantine the diseases of the old North’s Christendom so that they do not also spread South. So the worst of the “prosperity Gospel,” with its guarantees of material prosperity to converts, has taken over and predominates in many movements, such as in Kenya. The homophobia that leads nations like Uganda and Kenya to debate whether to condemn homosexuals to death is richly related not only to old tribal taboos, but to new-style Pentecostal churches there. And the conflicts over gay issues in the American Episcopal church are heated up by interventions on the part of Ugandan and Kenyan Anglicans. The Lutheran World Federation, meeting this month, deals with Tanzanian Lutherans (who number one-third as many Lutherans after a few decades as there are Lutherans in the United States after three centuries of presence), as they say they will not accept funds or help (or prayers?) from Lutheran bodies that have different views of homosexuality than they do.
Exuberant therefore as many northern world historians may be over aspects of Christian growth in Africa – and I’ve also paid attention to these in my 2007 The Christian World – they and their compatriots often gasp when close-ups of practices in Africa get global publicity. This week the notices come from Nairobi, in balanced reporting by writers in The Economist who, quite naturally, notice the economic side of Pentecostal growth there. Borrowing “Prosperity Gospel” techniques from American evangelists and then re-exporting them in exaggerated form, African movements manifest bull market versions of competitive “market religion.” These have to be upbeat and aspirational. They help in some reform of business practices there, but “there is also plenty of hucksterism.”
The Economist tells of Bishop Margaret Wanjiru’s “Jesus is Alive Ministries,” where Ms. Wanjiru, a governmental official, draws 100,000 worshippers to meetings, but can see that number rise to 500,000 when a visiting evangelist also comes along. The editors comment that judgment from European and American critics often overlooks the fact that gross versions of “the Protestant Ethic” were imported from the northern churches. They also assess that these Pentecostalisms do better at inspiring personal wealth-seeking than at becoming clear political movements. We’ll wait and see.
Oh, and did we mention that The Economist reminds readers that many of these Pentecostal leaders promote “clear anti-Muslim sentiment” which “scares politicians who want to win the sizable Muslim vote.” Romanticizing New Christendom movements can be as dangerous as is the sneering done by those who look on and do not discern the good effects of much of these churchly endeavors in the lives of ordinary members.
References:
Philip Jenkins, The Next Christendom: The Coming of Global Christianity (Oxford, 1999).
Jenkins also treats the subject in “The Next Christianity,” in The Atlantic Monthly, October 2002: http://www.theatlantic.com/past/docs/issues/2002/10/jenkins.htm.
Martin E. Marty, The Christian World: A Global History (Modern Library, 2007).
Mark Noll, The New Shape of World Christianity (IVP Academic, 2010).
Lamin Sanneh, Disciples of All Nations: Pillars of World Christianity (Oxford, 2008).
“Slain by the Spirit: The rise of Christian fundamentalism in the Horn of Africa,” in The Economist, July 2010: http://www.economist.com/node/16488830?story_id=16488830.
For an earlier treatment of the prosperity gospel in Africa, see Isaac Phiri and Joe Maxwell, “Gospel Riches,” in The Christian Century online, July 2007: http://www.christianitytoday.com/ct/2007/july/12.22.html.
[Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.]
Monday, July 5, 2010
Relativism and all that
I have been following with special interest the robust debate these past couple of days on the issue of relativism which my friends have been presenting here at the Mirror of Justice. Two items that help me think through the question of what is relativism and what does it mean to us who inhabit and participate in the res publicae are well presented in the following excerpts.
Upon the death of Pope John Paul II, the then Dean of the College of Cardinals, Joseph Ratzinger, said this in his homily prior to the opening of the papal conclave:
Today, having a clear faith based on the Creed of the Church is often labeled as fundamentalism. Whereas relativism, that is, letting oneself be “tossed here and there, carried about by every wind of doctrine”, seems the only attitude that can cope with modern times. We are building a dictatorship of relativism that does not recognize anything as definitive and whose ultimate goal consists solely of one’s own ego and desires. We, however, have a different goal: the Son of God, the true man. He is the measure of true humanism. An “adult” faith is not a faith that follows the trends of fashion and the latest novelty; a mature adult faith is deeply rooted in friendship with Christ. It is this friendship that opens us up to all that is good and gives us a criterion by which to distinguish the true from the false, and deceit from truth. We must develop this adult faith; we must guide the flock of Christ to this faith. And it is this faith—only faith—that creates unity and is fulfilled in love.
In contrast there is the opinion of Justices O’Connor, Kennedy, and Souter in Planned Parenthood v. Casey wherein they asserted:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. These considerations begin our analysis of the woman’s interest in terminating her pregnancy but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law.
It is clear that the choices we have regarding our individual lives and our lives in common in the res publicae are identified by these two passages from distinctive schools of thought. Justices O’Connor, Kennedy, and Souter give us the choice of relativism by proclaiming that the truth of the individual is what matters. But, in contrast, Cardinal Ratzinger gives some of us the better option.
RJA sj
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