Reading
Tom's thoughtful comment below is a pleasure. He takes each of Michael's and
Rick's respective pieces, notes and elaborates on areas of agreement, and
proceeds to explain with care where he may have a different view. I should also say that I very much respect and admire the work that he, Professor Laycock, Professor Wilson, Rick, and Michael (among others) have been doing on the issue of religious exemptions and same-sex marriage.
The tail end of Tom's post caught my eye: "In fact, in the long run, I think, the best hope for
arguing for religious liberty is not to refuse sympathy for gay couples'
efforts to live out their deep, pervasive commitments--but rather to
accord them sympathy and claim similar sympathy for the deep, pervasive
commitments of religious believers individually and in their institutions.
It is frequently argued that activists for SSM, "aggressive and
uncompromising," will never return that sympathy. But the struggle
here is, as in so many other cases, to convince those in the middle. My
own judgment is that as time goes on, the effort to refuse same-sex marriage
will increasingly alienate those in the middle, forfeiting the chance to
win them to a "live and let live" approach that will
protect traditional religious organizations' ability to maintain their
identities."
Here are a few friendly questions for Tom about this paragraph, offered up in an appreciative spirit. The overarching question is: Why is this your
judgment? More specifically, what is the basis for the judgment that, as a
predictive matter, a metaphorical cessation of hostilities on the substantive
question of same-sex marriage will, as time goes on, result in a metaphorical
cessation of hostilities on the substantive question of religious exemption? It
seems to me that in order to reach that conclusion, one would have to believe
certain other things, too--things which are not necessarily particular to this debate but may reflect more general beliefs about political psychology. It is those more general beliefs that I want to explore and think about in this post.
First, it seems to me that one would need to believe in a theory of what I'll call sympathetic
reciprocity in politics (the word "sympathy" appears several times in Tom's comment), which might go something like this: in the realm of politics or policy-making, over the long-term,
people remember and respect concessions, and they respond to those
concessions with concessions of their own. They reward sympathy with
sympathy. And eventually, with time and good faith, a people that holds radically different beliefs about the good life can achieve a modus vivendi--a 'live and let live' ethic--by observing a policy of sympathetic reciprocity.
Setting aside this particular controversy, though, I wonder whether that is an accurate description of the reasons that political concessions generally get made. We do not accept a 'live and let live' ethic for many issues of public concern; we do accept them for others; and
the issues for which we do and do not accept such an ethic are relatively stable
but always changing. But is the extent to which we accept such an ethic in turn
dependent on a theory of sympathetic reciprocity--that is, on the extent to
which those with whom we disagree have previously extended sympathy toward the
policy that we champion and that they disavow? Does politics have a sympathetic memory in this way, and does it reward those who moderate their views with reciprocal concessions? Or is the acceptance of a 'live and let
live' ethic more dependent on considerations of public salience, political
prestige and influence, effective rhetoric, cost, the vagaries of public
opinion, cultural trends--in sum, is it far more dependent on considerations of cultural and political power? I grant
that this is a gloomier view than I think is at work in
Tom's comment. I'm not sure that I endorse it in an unqualified way. But I hope Tom might say a little bit more about why--on what grounds--he holds (or seems to hold) to the comparatively sunny view of sympathetic reciprocity in politics.
Second, I wonder about the more specific question of the political psychology of what Tom has called 'the middle.' In theory, a legal right ought never to be compromised by political considerations, but in practice, rights are traded off all the time. Yet we would need an extremely acute sense of the middle's opinion of the strength and importance of the rights in conflict in order to predict with confidence whether the middle will believe that trade-offs of rights are warranted, and that a policy of 'live and let live' is justified. A policy of 'live and let live' was viable for, e.g., the Amish in Wisconsin v. Yoder in part because the common feeling (as perceived and articulated by the Court) was that an accommodation in that context could be bought cheaply. The Amish are a small minority that is largely invisible to the middle, and so the price of a 'live and let live' policy was low enough for the middle to display its magnanimous quality. In today's climate, when considerations of equality and nondiscrimination are at stake, I wonder whether the calculus is different: the middle may well believe that the right of exemption is purchased at a much dearer cost.
In fact, I do not have a reliable sense for just how strong a commitment the middle has to the legal right to same-sex marriage. Tolerance is not embrace. I also do not have a reliable sense for how powerfully committed the middle is to religious liberty. On the one hand, there are signs that Americans
are increasingly disenchanted with religious freedom, that they believe the
First Amendment protects too much, and that of the rights that it does protect,
religious freedom is comparatively unimportant. On the other hand, that's only one survey, and, as I say, the degree of commitment of the middle to the legal right to same-sex marriage is also difficult to measure precisely.
The middle is in the middle for a reason: their support or opposition is middling. But there are different degrees of political support, and those gradations will be relevant to predictions about what the middle is likely to do when rights clash. The question I
have for Tom on this front is: isn't the viability of the ‘live and let live’
strategy dependent on having a reliably accurate measure of the middle's views? Without that, one may be misled by an attractively upbeat, but perhaps overly sanguine (and how would we know?), political psychology that does not reflect the middle's sense of the world.
I'm a bit late posting this -- I had meant to earlier in the month, in the context of the Fortnight for Freedom -- but I think it's still worth reading. Thomas Howard discusses, in "July 4, July 14, and the Religious Question" the important distinction between (a) the American Revolution and the "positive secularism" it produced and (b) the French Revolution and the "aggressive secularism" it brought about.
The discussion echoes, of course, our Pope Emeritus's frequent discussions of (and praise for) "healthy secularity" (which I discuss here and elsewhere).
Here, at Public Discourse, is a shorter version of a paper I shared at a recent conference, sponsored by the Notre Dame Program on Church, State, and Society, dedicated to exploring and celebrating the work of Prof. Mary Ann Glendon. Here is a bit:
[C]onstitutionalism depends for its success on the existence and activities of non-state authorities. It should protect, but it also requires, self-governing religious communities that operate and evolve outside and independent of governments. It is a mistake to regard “religion” merely as a private practice, or even as a social phenomenon, to which constitutions respond or react. Instead, the ongoing enterprise of constitutionalism is one to which religious freedom contributes. Human rights depend for protection and flourishing not only on enforceable constraints on government but also on the structure of the social order. With respect to matters of polity, doctrine, leadership, and membership, the autonomy that religious institutions enjoy simultaneously contributes to and benefits from that structure.
Monday, July 22, 2013
This happened a few days ago, but is still worth noting. Congratulations to the Becket Fund lawyers on this important victory.
Friday, July 19, 2013
Thanks very much, Tom, for engaging my brief commentary in Commonweal on United States v. Windsor.
1. I explicate the right--the human right--to religious and moral freedom, and explain why we are warranted in concluding that the right is entrenched in the constitutional law of the United States, both in my new book and, more recently, in an article that will soon be published in the Journal of Law and Religion. The article is available here.
2. You ask: "Michael, given your argument, do you think that Roe and Casey
were rightly decided--and rightly decided simply because restrictions
on abortion are 'widely contested' (without some need to establish that
they seriously impose on women's physical autonomy or life plans)?" The way you formulate your question reflects, I think, a misunderstanding of the content of the right to religious and moral freedom. About the right, please see my first response, above.
About the constitutional controversy over the criminalization of abortion: In the final chapter of my new book, I bring both the right to moral equality (which I explicate in the book) and the right to religious and moral freedom to bear on the Abortion Cases--and conclude both that Roe v. Wade was rightly decided (which is not to say, rightly reasoned), principally because of the right to moral equality, and that Doe v. Bolton was wrongly decided. In reaching that twofold conclusion, I am aligned with what I understand to be the position my former teacher Ruth Ginsburg expressed when she was a member of the U.S. Court of Appeals for the D.C. Circuit.
3. I've already referred twice to my new book, Human Rights in the Constitutional Law of the United States (2013), the official publication date of which is July 31, 2013. The table of contents and introduction to the book are available here.
4. Space contraints did not permit me to develop adequately my Commonweal critique of SCOTUS's opinion in United States v. Windsor. I will present the full critique in the context of a lecture that I am due to deliver at the University of Illinois on November 6: The David C. Baum Lecture in Civil Rights and Civil Liberties. I will make the lecture available shortly after I deliver it. In the lecture, I will explain why, in my judgment, the right to equal protection--which is the American articulation of the internationally recognized human right to moral equality--is not the appropriate basis for ruling that it is unconstitutional for government to deny access to civil marriage to same-sex couples.
So, to be continued ...
In the
vein of "progressives are very wrong and misguided to dismiss, denigrate, and burn bridges with, evangelicals," here's an
interesting story on the crucial role evangelicals are playing in preserving prospects for immigration reform on the Republican side.
Two MOJ-ers, Michael Perry and Rick Garnett, have now written for Commonweal about United States v. Windsor. Let me add my own thoughts.
Michael says, "Right decision, wrong reason." I agree with him but disagree in turn with his own reason. Michael rightly criticizes Kennedy's opinion for reducing all opposition to same-sex marriage (SSM) to "animus" against gays and lesbians or a judgment that they are inferior beings. Michael nails it when he says that Kennedy's reasoning is in turn "demeaning to all those who for a host of non-bigoted reasons uphold the traditional understanding of marriage as an essentially heterosexual institution." Michael's justification for the decision, instead, is that it upholds "the individual's [constitutional] right to moral and religious freedom." He rests this not on the special importance of marriage as a moral or religious act or relationship for gays and lesbians, but rather on the fact that rejection of SSM fails to qualify as a standard enforcing "public [rather than private] morals" (my emphasis). Michael says that "if laws are based either on a religious belief that certain conduct is immoral or on the nonreligious belief of a minority—a narrowly held belief that is widely contested—government is not truly acting to protect public morals" (emphasis in original). Since he says the opposition to SSM is not necessarily religious, his problem with it is that it's "a narrowly held belief that is widely contested."
I disagree with that both as a constitutional standard and as a conclusion on the facts here. It doesn't seem to me that we have a general constitutional right to personal freedom whenever the reason for restricting that freedom is "widely contested" and can be characterized as "a narrowly held belief." Michael's new book will no doubt marshal a powerful argument for his position, but it seems to me too close to saying "the Constitution enacts Mr. John Stuart Mill's On Liberty." As a general approach, I think we need to preserve deference to democratic decisionmaking except when there are particular interests that call for more stringent review. Moreover, on the facts, it seems to me that although opinions on marriage are changing, the opposite-sex-only view is still far from "narrowly held": it represents the substantial majority in many states, which is far different from the contraception prohibitions, which, when Murray wrote, remained in only two states, where they were usually unenforced. Michael, given your argument, do you think that Roe and Casey were rightly decided--and rightly decided simply because restrictions on abortion are "widely contested" (without some need to establish that they seriously impose on women's physical autonomy or life plans)?
Instead, I think Windsor was rightly decided but should have rested on the ground--argued in this brief and article, both co-authored by Doug Laycock and me--that some form of heightened scrutiny should apply because DOMA effectively discriminated based on sexual orientation, which should be a semi-suspect classification, and/or because it discriminated against gays and lesbians in the exercise of their fundamental right to marry. I think these grounds (1) would more honestly describe the review that the Court is applying, and (2) would avoid denigrating nearly half the population by dismissing their traditionalist views of marriage as animus and hatred, but (3) would recognize that the arguments made for excluding same-sex couples from marriage are too speculative to justify the significant unequal effect that the exclusion has on gay and lesbian couples and the children they are raising.
I share Rick's worry that the "animus" ground on which the Court actually relied not only denigrates those holding the traditionalist view, but by doing so increases the threats to religious liberty from the recognition of SSM: by suggesting that opponents "are best regarded as backward and bigoted, unworthy of respect," it "is not likely to generate compromise or accommodation and so it poses a serious challenge to [the] religious freedom" of religious social services, schools, individuals, etc. Rick, of course, doesn't agree with me that Windsor was rightly decided. And while Rick, Michael, and I have all argued for accommodations when SSM is recognized, some others would say this is misguided--that the only way to protect religious freedom is to deny SSM altogether, because (as Rick describes their argument) the campaigners for gay marriage are "aggressive and uncompromising."
Laycock and I, in our brief and article, urge that this is not necessary: it's possible to protect both same-sex marriage and religious liberty. In fact, in the long run, I think, the best hope for arguing for religious liberty is not to refuse sympathy for gay couples' efforts to live out their deep, pervasive commitments--but rather to accord them sympathy and claim similar sympathy for the deep, pervasive commitments of religious believers individually and in their institutions. It is frequently argued that activists for SSM, "aggressive and uncompromising," will never return that sympathy. But the struggle here is, as in so many other cases, to convince those in the middle. My own judgment is that as time goes on, the effort to refuse same-sex marriage will increasingly alienate those in the middle, forfeiting the chance to win them to a "live and let live" approach that will protect traditional religious organizations' ability to maintain their identities.
Michael Perry also has an interesting article over at Commonweal, "Right Decision, Wrong Reason," primarily about Justice Kennedy's opinion for the majority of the Court in Windsor and the grounds on which the majority based its legal conclusion. Michael is critical of the latter but supportive of the decision itself. Check it out as well. A bit:
In my judgment, the Court made the right decision in Windsor, but the majority was much less clear than it should have been about why DOMA’s exclusion of same-sex marriages was unconstitutional. Kennedy’s opinion for the majority should not have put any weight on the alleged “animus” of those opposed to same-sex marriage ....
Kennedy should have avoided casting such stones, for there were ample grounds for his judgment in the protection the Constitution affords to the individual’s right to religious and moral freedom.
