Bonus! I've received, in recent days, real-world, dead-tree copies of three books which I am looking forward to re-reading and marking up: Paul Horwitz's First Amendment Institutions(natch); Andy Koppelman's Defending American Religious Neutrality; and Brian Leiter's Why Tolerate Religion? I had the chance to workshop each of these books, in one way or another, and it's a real treat to have them in hand. Those long airplane flights over Christmas are already looking less-unpleasant . . . .
Psychic Sophie, as I mentioned in Part I, appealed the district court's unfavorable disposition of her case to the Fourth Circuit U.S. Court of Appeals, which held oral argument on it Tuesday. ChiefJudge Traxler, Judge Wilkinson, and Judge Duncan made up the panel. Here's a news report on the argument. A couple of highlights.
First, in response to an inquiry about whether predicting the future is "inherently deceptive" (and therefore should not receive constitutional protection), counsel for the defendant County said, "Yes, sir, it is." To which CJ Traxler responded, "How would you characterize the Book of Revelation?" Counsel for the plaintiff seems to have argued that predicting the future is not "inherently" deceptive provided that the prognosticator "sincerely believes" the prediction or does not believe that he is being deceptive. Does the deceptiveness of a prediction of the future depend on the speaker's subjective belief as to its truthfulness and/or his intent to deceive? I wouldn't think so, but I'm not a free speech maven. But I suppose one might have replied that predictions of the future are not "inherently" deceptive; they are only contingently true (or false) -- the contingency being their (dis-)confirmation on the appointed day. We're still waiting on Revelation. On the other hand, Montaigne, in his essay, "On Prognostication," doesn't see what all the fuss is about: "[A]lthough there still remain among us certain methods of divination, by the stars, by spirits, by ghosts, by dreams, and otherwise -- a notable example of the senseless curiosity of our nature, occupying itself with future matters, as if it had not enough to do in digesting those at hand --.... It is no advantage to know the future; for it is a wretched thing to suffer suspense all to no purpose[.]"
Second, Judge Duncan was interested in the question of whether Psychic Sophie's business and belief system were "religious" or instead a "way of life." But Judge Wilkinson seemed dubious: "If what she's expressed is a religion, then anything and everything is a religion." Kevin Walsh quite rightly suggested to me that skepticism about astrology has a distinguished pedigree dating back at least to St. Augustine. From Book IV, Chapter 3 of the Confessions:
There was in those days a wise man, very skillful in medicine, and much renowned therein, who had with his own proconsular hand put the Agonistic garland upon my distempered head, not, though, as a physician; for this disease Thou alone healest, who resistest the proud, and givest grace to the humble. But didst Thou fail me even by that old man, or forbear from healing my soul? For when I had become more familiar with him, and hung assiduously and fixedly on his conversation (for though couched in simple language, it was replete with vivacity, life, and earnestness), when he had perceived from my discourse that I was given to books of the horoscope-casters, he, in a kind and fatherly manner, advised me to throw them away, and not vainly bestow the care and labour necessary for useful things upon these vanities; saying that he himself in his earlier years had studied that art with a view to gaining his living by following it as a profession, and that, as he had understood Hippocrates, he would soon have understood this, and yet he had given it up, and followed medicine, for no other reason than that he discovered it to be utterly false, and he, being a man of character, would not gain his living by beguiling people.
Looking forward to the panel's decision.
UPDATE: A reader and speech expert sends in these interesting comments on the speech side of this case:
These issues quickly get subtle, beyond my capacity to jurisprudentially slice and dice with any authority. I’m put in mind of another Fourth Circuit case, the horrifying Paladin Press/Rice/”Hit Man” book sale/free speech case.
In some, but hardly all, psychic/astrology/legal and illegal lottery cases, as well as in Rice, what’s being bought and sold is in part the opportunity to experience a realistically sustainable simulacrum, a pleasant illusion, or a fantasy of one sort or another which would not be realistically available without the transaction, and the payment associated therewith.
From the psychic, one may be buying in part, and with one degree or another of conscious recognition, the simulacrum of a caring friend or ally. From the lottery sales clerk, one may be buying the realistic opportunity to pleasantly fantasize about what one would or would not do in radically changed economic circumstances (the actual purchase of the ticket may strengthen the vividness or the intensity of one’s fantasizing). In buying the Hit Man book, one “creatively visualizes” oneself as self-reliant, less vulnerable, a noir anti-hero.
But part of the subtlety is that buyer acknowledges all these things at one level, yet for the transaction to make economic sense, there must remain enough distance from those acknowledgements to sustain a sufficiently vivid illusion. The Hit Man book, a virtual instruction manual on committing murder, actually had a disclaimer, which some readers might have, in character, cynically shrugged off, or crushed like a cigarette stub, again to one degree or another, as pointless verbiage required by the squares of the world.
And if all this is so, it becomes harder to distinguish these activities from an escapist movie, or the shoes associated with one’s sports hero, or even a modestly effective, if transient, mood-enhancing drug.
Apropos of Trollope and Ike, here's a neat case -- courtesy of MOJ buddy Kevin Walsh -- that raises all kinds of interesting questions and which was just up for argument at the Fourth Circuit. It concerns one Psychic Sophie, a self-described "spiritual counselor" operating a business in Chesterfield County, Virginia, which provides the following services (for a fee, of course): Tarot card readings, psychic and clairvoyant readings, and answering strangers' personal questions in person, over the phone, and via email.
This is a feast day that was widely celebrated when I was growing up in Germany. We kids always woke up to shoes full of candy, but my father's shoe was always filled with coal (something that never failed to send us all into gales of laughter). More here.
The Washington Post reports that the Evangelical Council for Financial Accountability (ECFA) has urged the IRS to become more involved in addressing "outlier" ministries that are not otherwise being held financially accountable. Among the suggestions: ensure that compensation for leaders of nonprofits is "reasonable." (Please correct me if I'm misreading the actual recommendations, as I've only read the news coverage of the recommendations.)
The ECFA's actions suggest an interesting question: should fans of tax exemptions for churches nevertheless encourage the IRS to crack down on churches that appear to "abuse" the exemption, or is that headed down a dangerous path? And if the tax exemption reflects a jurisdictional distinction between church and state, should the state have anything to say about how "reasonable" the church leaders' salaries are?
Excellent constitutional scholar and all around generous guy Nelson Tebbe is blogging with us at CLR Forum for the month of December. Come on over and check out his first post, "Government Nonendorsement," in which he gives a readable summary of this new piece. For me, one of the most interesting conceptual moves he makes in the piece is to consider the question of "secular nonendorsement."
The United States District Court for the Eastern District of New York has denied in part and granted in part the federal government's Rule 12(b)(1) motion to dismiss the complaint of the Roman Catholic Archdiocese of New York, Catholic Health Care Systems, the Roman Catholic Diocese of Rockville Centre and Catholic Charities, and Catholic Health Services of Long Island (CHSLI). The case is important on the issues of standing and ripeness, inasmuch as it goes in a different direction from several other courts that have addressed these questions. The plaintiffs operate self-insured health plans which they believe do not qualify for grandfathered status, though they all do qualify for the safe harbor (meaning that no enforcement would occur against them until January 1, 2014). The decision is complicated and has several moving parts. Here's the scoop, after the break.
I recently mentioned here my new chapter "Subsidiarity in the Tradition of Catholic Social Doctrine," which soon thereafter was noted here by the Acton Institute and, even more recently, here by the Acton Institute's Jordan Ballor. Ballor's engagement with the paper is substantive, and I am grateful for it. I would, though, like to offer a clarification. Ballor writes, "And pace Brennan, it is not clear to me that there is one univocal version of subsidiarity, at least as it arises out of the early modern period." The "pace" is unnecessary. I do not contend that subsidiarity is a univocal term; indeed, as Ballor also reports, the very point of the book to which my chapter is a contibution is a "comparative" perspective on subsidiarity. My assigned task in writing the chapter was to tell the what subsidiarity means in Catholic social doctrine, period. I agree with Ballor that other traditions have affirmed something more than superficially similar to subsidiarity as it is understood in the tradition of Catholic social doctrine ("sphere sovereignty" comes to mind), which is exactly what one would expect of what is (as Catholic social doctrine affirms) an "ontological principle." I am happy to agree with Ballor concerning the small-c catholicity of subsidiarity, while also defending the proposition that the account of subsidiarity articulated in Catholic social doctrine is the best on offer. I look forward to reading Ballor's work on subsidiarity.
Speaking of Germany...... last Friday the Murphy Institute dedicated one of its "Hot Topics: Cool Talk" programs to the recent grant of political asylum by U.S. Immigration Judge Lawrence Burman to German family (Uwe and Hannelore Romeike and their five children) who were home-schooling their children. (In Germany, attendance at an
officially recognized school – public, private or religious – is
mandatory.) Judge Burman ruled that “home-schoolers are a particular social group that the
German government is trying to suppress. This family has a well-founded
fear of persecution … therefore, they are eligible for asylum.” Luke Goodrich, a Becket Fund attorney who worked on their amicus brief supporting the Romeike’s asylum claim, debated this issue with David Abraham of the University of Miami School of Law. You can watch the video here.
Anthony Trollope is a wonderful novelist of the Victorian period. His Chronicles of Barsetshire series is both a window on nineteenth-century Britain and a stylistic masterpiece. And he is the author of as stingingly elegant a line about literary talent as I have run across (composed at the expense of my man, James Fitzjames Stephen): "a poor novelist, when he attempts to rival Dickens or rise above Fitzjeames, commits no fault, though he may be foolish." (from "Barchester Towers")
Here is a fascinating quote from his travelogue, "North America" (1862), written long before President Eisenhower said something vaguely similar, though in a very different register:
I have said that it is not a common thing to meet an American who belongs to no denomination of Christian worship. This I think is so: but I would not wish to be taken as saying that religion on that account stands on a satisfactory footing in the States. Of all subjects of discussion, this is the most difficult. It is one as to which most of us feel that to some extent we must trust to our prejudices rather than our judgments. It is a matter on which we do not dare to rely implicitly on our own reasoning faculties, and therefore throw ourselves on the opinions of those whom we believe to have been better men and deeper thinkers than ourselves . . . .
It is a part of [the American] system that religion shall be perfectly free, and that no man shall be in any way constrained in that matter. Consequently, the question of a man's religion is regarded in a free-and-easy way. It is well, for instance, that a young lad should go somewhere on a Sunday; but a sermon is a sermon, and it does not much concern the lad's father whether his son hear the discourse of a free-thinker in the music-hall, or the eloquent but lengthy outpouring of a preacher in a Methodist chapel. Everybody is bound to have a religion, but it does not much matter what it is.
