Hurt feelings are unreliable bases for constitutional law. People are insulted by all sorts of things,
their feelings of insult can change at breathtaking speed, and it is difficult to explain what ought to count as a constitutionally cognizable insult, and what ought not to, and why. And there is no area of constitutional law that is more dependent on judicial investigation and perception of insult or hurt feelings than the Establishment Clause--particularly the standard used to evaluate the constitutionality of religious displays by the government. Readers of this blog are probably familiar with the endorsement test, which demands that judges inquire after the degree to which a display might make someone feel like an outsider, or not fully part of the political community. That is a standard that depends on both judicial perception of insult and comparative valuations of insult (not all insults count).
My aim in this post is not to talk about that category of hurt feeling or insult, but about a related but less prominent argument about insults that one sometimes hears in connection with state-sponsored religious displays. It is the argument that for a religious person, when the government displays a religious symbol, it thereby robs or despoils the symbol of its sacredness. And when government then describes the nature and value of the symbol in non-religious terms (in cultural terms, for example, or in historical terms, or in secular terms), that constitutes an insult to religious people. So, for example, the constitutional category of "ceremonial deism" that is used to describe the phrase "In God We Trust" on money, or the phrase "under God" in the Pledge of Allegiance, is said to be deeply offensive to religious believers. Similarly, the description of the crucifix by Italian judges in the Lautsi v. Italy litigation as a symbol of national historical importance is said to cause hurt feelings among Catholics. By describing (or perhaps defining) a symbol in cultural or historical terms, the government thereby appropriates and degrades the symbol in the eyes of religious believers--and it's "their" symbol, after all--draining it of religious content. One can see strong traces of the claim and the sense of indignation and insult in Justice Thomas's concurring opinion in Van Orden v. Perry: "Telling either nonbelievers or believers that the words 'under God' have no meaning contradicts what they know to be true. Moreover, repetition does not deprive religious words or symbols of their traditional meaning. Words like 'God' are not vulgarities for which the shock value diminishes with each successive utterance." This argument from insult certainly is understandable and it resonates with many people, including some of my friends.
But not with me, I'm afraid. If anything, I find the argument itself insulting. The argument assumes that religious people are so thick-headed, or so culturally illiterate, or so confused about the nature of their faith and its symbols' meanings, or so hyper-attentive to the government's activities, or so insular, parochial, and unsophisticated, that they cannot understand the difference among (a) a cross that is displayed in a church; (b) a cross that is displayed at a cemetery; and (c) a cross that is displayed as a Halloween joke. Who doesn't understand those differences, and the differences in meaning that they convey? Who is confused? And is not the imputation of confusion, hurt feelings, and cultural simple-mindedness itself offensive? Those poor hayseed religious believers, bearing the psychological cross of their egg-shell sensitivities about their symbols! To argue that any act of the state--least of all its display of a cross at a war memorial or some statement about God on money or in a secular national pledge--could adulterate what a religious symbol like the cross means to Christians is to make a very unflattering claim about the strength with which those Christians believe, about the quality of their intellectual awareness and cultural acumen, and about just how little it takes to shake them up and distress them.
The argument also assumes that a government's decisions about a symbol really command, and ought to command, the attention of the religious. But what difference should it make that government "degrades" a symbol like the cross? Does the government have the power to degrade the Christian meaning of the cross? Do we look to the government to define the Christian meaning of the cross? That meaning is not the government's to define, or to degrade! To fret about state-sponsored religious degradation is implicitly to acknowledge the state's authority in an area where it has none. That the government (or anyone else, for that matter) may use a symbol for secular purposes of its own should do nothing to trivialize the Christian meaning, or to destabilize religious commitment or religious understanding, unless the suggestion is that the religious commitment runs no deeper than attachment to the symbol's secular meanings. Brand dilution may work for trademark law, where all symbols operate and compete at the level of the profane market, but it has little place here.
But as I say, it is difficult to tell someone not to feel hurt or insulted. I can certainly understand the sense of insult at a perceived usurpation of a religious symbol, but it is not a feeling I share at all when the Supreme Court trots out such coarse euphemisms as "ceremonial deism" to justify and explain the sorts of secular uses of religious symbols and religious language that have been going on at least as far back as the late Roman empire. For myself, I am more offended by what the arguments from insult imply about religious believers' savvy and understanding of the world, as well as of their own beliefs.
All of that, I suppose, is to return to the beginning, and to repeat my view that feelings of insult and offense are unsound grounds for constitutional law.
[Image: Delaroche's "Charles I Insulted by Cromwell's Soldiers"]
Tuesday, October 29, 2013
As in previous states (see archive here), our two groups of religious liberty scholars have submitted letters to legislators in Hawaii, where same-sex marriage is under consideration in a special session this week, arguing for meaningful religious-liberty protections that are absent from the current bills.
Here are the longer-form letter memo and testimony, from scholars who hold differing views on whether to recognize same-sex marriage (the testimony is from an expanded group adding Robert Destro, Marie Failinger, and Michael McConnell). And here are the letters and testimony from another group of scholars who all support same-sex marriage but also support strong religious accommodations.
This year, the Religious Legal Theory conference is being hosted by John Witte and the (wonderful) Center for the Study of Law and Religion at Emory. The theme is "A Global Conversation: Exploring Interfaith and International Models for the Interaction of Religion and State," and it's being held on Feb. 24 & 25, 2014. More info is available here. Here's a bit from the conference description:
Law and religion share an underlying structure built on commandments and corresponding commitments. They also share a space in the formal regulation of a person’s daily life. Oftentimes they attempt to legislate in the same specific areas, and oftentimes they come to different final conclusions, or to similar conclusions, but for very different reasons. It is often said that law gives religion its structure, and religion gives law its spirit; law encourages devotion to order and organization, while religion inspires adherence to both ritual and justice. Law and religion influence each other in many different ways, but at some level they must establish formal rules for their interactions. This conference aims to explore how law, embodied in the state, manages and frames its relationship with religion, and how religions internally manage and frame their relationships with the state.
Monday, October 28, 2013
My first post at Mirror of Justice, back in 2004, had to do with the implications for law and the legal enterprise of a Catholic "moral anthropology":
One of our shared goals for this blog is to -- in Mark's words -- "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."
With this theme in mind . . . Here (HT: Distinctly Catholic) is a really good talk by Archbishop Gomez, of Los Angeles, called "The Exalted Creator: Reflections on Human Nature and the Image of God." Read the whole thing (please!), but here's a bit:
I am coming to see that the new evangelization must include a new presentation of Christian anthropology — a new proclamation of our beautiful Catholic vision for the human person.
God has entrusted us in the Church with the beautiful truth that the human person is sacred. That every man and woman is created in the image and likeness of God.
There is a beautiful saying from the Church Father, St. Ireneaus: "The glory of God is man fully alive; moreover man’s life is the vision of God."
This belief runs deep in Judaism as well as Christianity. There is a beautiful Midrash that says: "A procession of angels pass before a human being wherever he or she goes, proclaiming, Make way for the image of God!"
The men and women of our times need to hear this good news. They need to know they are the glory of God, created and destined for the vision of God. They need to know that they are God’s image and that everyone they meet is God’s image, too.
As Christians, we need to be the ones who tell our neighbors that their lives are not trivial. That humans are not just random beings, contingent products of evolution, going through life with no "why" or reason. . . .
I was rereading the Supreme Court’s opinion in Salazar v. Buono, the case concerning a cross erected in the Mojave Desert in 1934 by a group of veterans in order to commemorate American soldiers who died in World War I. In his dissenting opinion, Justice Stevens took his usual rigid view in any case dealing with display of symbols: the cross “necessarily” conveys an “inescapably sectarian message….Making a plain, unadorned cross a war memorial does not make the cross secular. It makes the war memorial sectarian.” Justice Stevens also cited approvingly the district court judge’s view that the cross is “exclusively a Christian symbol.”
The more I read these lines, the more implausible I find them and the view of symbols that they represent. Perhaps another way to put my skepticism is that any observer who believed this about a symbol like the cross would be unreasonable--the sort of person who could not effectively administer a “reasonable observer” standard in Establishment Clause cases of this kind. The implausibility of the view is conceptual but it also is empirical. Though I recognize that anecdotes are not data, still, personal experience is worth something. The "holiday" of Halloween was for children when I was a child, but it seems to have become a kind of modern-day equivalent of Venetian Carnevale circa 1760. No matter; this year, I am grateful to Halloween for offering a useful challenge to claims about what the symbol of the cross must mean, in all times and places, for all people.
My neighborhood is child-saturated, and as a result Halloween is widely and noisily celebrated. Part of the celebration involves the display of putatively spooky lawn decorations of motley sorts, among the most popular of which is the “creepy gravesite” ensemble. It used to be that round headstones were the convention. But now one increasingly sees in such arrangements the presence of a cross. Here’s a fairly typical setup:
Probably my surreptitiously taken picture does not do justice to the mise en scène. But what it displays is a simple black Latin cross with the words RIP at the base. You can see that the cross is surrounded by other Halloween acoutrements--a skeleton in the ground, gravestones, spiderwebs. All around these sit related objects--werewolves and other hairy and unsavory creatures, a plastic witch, ghosts dangling from trees with flashing red eyes, and so on. This sort of decorative landscape is extremely common. The presence of a cross in it is less so, but just in my own neighborhood, I counted 4 displays that contained a cross of some sort.
Suppose that a municipality chose to display something like this on town hall grounds at Halloween. What would it be communicating? What does a cross mean in a display like this? Its meaning is perhaps complicated because it is situated in several contexts. It sits first within a mock cemetery but the point of the display is not remotely either commemorative (as in a memorial for the dead) or Christian. The point of the display is to celebrate, in a lighthearted, cute, and possibly mischievous way, all that Halloween has come to represent as an occasion for kids: the occult, mild wickedness, spookiness, and so on. It would make a dour schoolmarm of Christianity to say that displays like this are anti-Christian. Of course they are not. But it would verge on sheer absurdity to claim that a cross in this sort of context conveyed “an inescapably sectarian message,” or that what would otherwise be a tribute to spooky kid fun just must be transformed into a celebration of Christ by the inclusion of a cross.
It is true that even in this context, the meaning of the cross is to some extent connected to the original Christian meaning. It is so connected in this weak way: had there been no prior Christian meaning, there could have been no subsequent tradition in which crosses have come to convey a commemorative message, and therefore no cultural context within which a cross could come to find its way into a Halloween cemetery display. But noting that genealogical connection is very different than assigning this particular cross–or others like it–an indelibly Christian meaning today. That would be preposterous, in the etymologically correct sense of the word--mixing up what comes later for what came before. It would also, from my perspective at least, be insulting. It would imply that Christians are such boors and cultural rubes that they cannot tell the difference between a joke and the truth of their faith.
It might be argued that the meaning associated with the Halloween cross only arose because people are ignorant of the Christian, soteriological meaning. That seems uncharitable to me, but also mistaken. What is more probable is that meanings intertwine, and that it becomes difficult over time to disaggregate religious meanings from other fair, culturally specific interpretations. As I write in The Tragedy of Religious Freedom about the Mojave Desert Cross:
Just as it is impossible to distinguish precisely where the religious ends and the artistic begins in a Bach oratorio, a Giotto fresco, or a Dantean canto, so, too, is it fruitless to attempt to tweeze away the Buono cross’s civic submeanings from an antecedent religious meaning. But the fact that it is unprofitable to perform this exercise in segregation, and in quantifying the importance of this or that meaning, does not mean that permitting these various submeanings to exist is equivalent to condoning state sponsorship of religious belief. Religious and cultural meanings may and do interpenetrate across time. And meanings that emerge from that interpenetration are not ipso facto constitutionally impermissible, but invitations to historically and contextually graduated judgment.
