At campuses across the country, traditional ideals of freedom of expression and the right to dissent have been deeply compromised or even abandoned as college and university faculties and administrators have capitulated to demands for language and even thought policing. Academic freedom, once understood to be vitally necessary to the truth-seeking mission of institutions of higher learning, has been pushed to the back of the bus in an age of "trigger warnings," "micro-aggressions," mandatory sensitivity training, and grievance politics. It was therefore refreshing that the University of Chicago, one of the academic world's most eminent and highly respected institutions, in the face of all this issued a report ringingly reaffirming the most robust conception of academic freedom. The question was whether other institutions would follow suit.
Yesterday, the Princeton faculty, led by the distinguished mathematician Sergiu Klainerman, who grew up under communist oppression in Romania and knows a thing or two about the importance of freedom of expression, formally adopted the principles of the University of Chicago report. They are now the official policy of Princeton University. I am immensely grateful to Professor Klainerman for his leadership, and I am proud of my colleagues, the vast majority of whom voted in support of his motion.
At Chicago and Princeton, at least, academic freedom lives!
Here are the principles we adopted:
“'Education should not be intended to make people comfortable, it is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom' . . . . . Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn. Except insofar as limitations on that freedom are necessary to the functioning of the University, the University of Chicago fully respects and supports the freedom of all members of the University community “to discuss any problem that presents itself.” Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.
"The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University. But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University’s commitment to a completely free and open discussion of ideas. In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose.
"Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission. As a corollary to the University’s commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression. Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it."
Friday, April 3, 2015
We've got Nate Oman (William & Mary) blogging with us for the month at the Center for Law and Religion Forum. Come on over and have a look at his very fine first post, Indiana and Doux Commerce, which responds to various reflections of the political theorist Jacob Levy (McGill) on the relationship of religious freedom and commerce.
Thursday, April 2, 2015
I have the good fortune of presenting next week over lunch to the students in my law school's John Marshall Scholars program on the topic of John Marshall's private life. This seemed like a fitting topic in anticipation of their upcoming visit to the John Marshall House. In preparation, I've recently been reading My dearest Polly; letters of Chief Justice John Marshall to his wife, with their background, political and domestic, 1779-1831, by Frances Norton Mason. I came across a couple of quotations from Marshall that seemed worth sharing.
The first is from Marshall's Life of Washington, in his description of the political hysteria surrounding the deeply unpopular Jay Treaty. Marshall's contrast between the deliberate approach of the statesman and the intemperate quickness of populist critics reveals how little has changed since the 1790s in the manner in which public affairs are sometimes considered:
In the populous cities, meetings of the people were immediately summoned, in order to take into their consideration, and to express their opinions respecting an instrument, to comprehend the full extent of which, a statesman would need deep reflection in the quite of his closet, aided by considerable inquiry. It may well be supposed that persons feeling some distrust of their capacity to form, intuitively, a correct judgment on a subject so complex, and disposed only to act knowingly, would be unwilling to make so hasty a decision, and consequently be disinclined to attend such meetings. Many intelligent men, therefore, stood aloof, while the most intemperate assumed, as usual, the name of the people; pronounced a definitive and unqualified condemnation of every article in the treaty; and, with the utmost confidence, assigned reasons for their opinions, which, in many instances, had only an imaginary existence; and in some, were obviously founded on the strong prejudices which were entertained with respect to foreign powers. It is difficult to review the various resolutions and addresses to which the occasions gave birth, without feeling some degree of astonishment, mingled with humiliation, at perceiving such proofs of the deplorable fallibility of human reason.
The second Marshall observation I thought I would share is from an autobiographical letter to Justice Story written in 1827. This observation, too, is about the debate over the Jay Treaty, from a distance of about thirty years:
As it was foreseen that an attempt would be made in the legislature to prevent the necessary appropriations, one or two of my cautious friends advised me not to engage in the debate. They said that the part which it was anticipated I would take, would destroy me totally. It was so very unpopular that I should scarcely be permitted to deliver my sentiments, and would perhaps be treated rudely. I answered that the subject would not be introduced by me; but, if it should be brought before the house by others, I should undoubtedly take the part which became an independent member. The subject was introduced; and the constitutional objections were brought forward most triumphantly. There was perhaps never a political question on which any division of opinion took place which was susceptible of more complete demonstration, and I was fully prepared not only on the words of the constitution and the universal practice of nations, but to show on the commercial proposition especially, which was selected by our antagonists as their favorite ground, that Mr. Jefferson, and the whole delegation from Virginia in Congress, as well as all our leading men in the convention on both sides of the question, had manifested unequivocally the opinion that a commercial treaty was constitutional. I had reason to know that a politician even in times of violent party spirit maintains his respectability by showing his strength; and is most safe when he encounters prejudice most fearlessly. There was scarcely an intelligent man in the house who did not yield his opinion on the constitutional question. The resolution however was carried on the inexpediency of the treaty.
First, Professor Doug Laycock has a very good piece/interview at the Religion and Politics Blog.
Second, I participated in a Bloomberg Law podcast with Professor Robert Katz on these issues. I thought we had a useful exchange. At the end of the interview, however, Rob was asked a question about the relevance of Hobby Lobby to these matters, to which he responded essentially that the two were disconnected. I didn't get a chance to jump in (had to leave to teach class!) but I have a different view and thought this quote from Doug's interview was apt:
For the first time in American history, government had made it unlawful, at least if you were an employer, to practice a well-known teaching of the largest religions in the country. The same-sex marriage debate has the same feature. This attempt to suppress practices of the largest faiths is a new thing in the American experience. And this huge escalation in the level of government regulation of religious practices is of course producing a reaction from religious conservatives, and is part of the reason for the current polarization.
UPDATE: And a third item, see my colleague Mark Movsesian's thoughts.
Wednesday, April 1, 2015
"The Catholic Church is convinced that every human being is created in the image of God" -- so pontificate the Bishops of the Church in Indiana: here. "Convinced" by whom? And who/what is the referent "Catholic Church" that has been "convinced?" The metaphysics of the proposition is risible (and shameful).
A more promising intervention by the Bishops might begin as follows: "The Holy Catholic Church teaches that . . . ." And might then go on to observe that the salvation of souls depends on it . . . .
Here is a statement from Indiana's five Catholic bishops:
The recent passage of the Religious Freedom Restoration Act in Indiana appears to have divided the people of our state like few other issues in recent memory. We urge all people of good will to show mutual respect for one another so that the necessary dialogue and discernment can take place to ensure that no one in Indiana will face discrimination whether it is for their sexual orientation or for living their religious beliefs.
The Catholic Church is convinced that every human being is created in the image of God. As such, each and every person deserves to be treated with dignity and respect. This includes the right to the basic necessities for living a good life, including adequate healthcare, housing, education, and work. The Catholic Church teaches that the principle of religious freedom also is rooted in the dignity of the human person. Religious freedom is one of the most cherished rights in the U.S. Constitution. The rights of a person should never be used inappropriately in order to deny the rights of another. We are called to justice and mercy.
We believe that it is crucial that religious freedom be protected. As Pope Francis wrote in his apostolic exhortation, The Joy of the Gospel: “No one can demand that religion should be relegated to the inner sanctum of personal life, without influence on societal and national life, without concern for the soundness of civil institutions” (n. 183).
We support efforts to uphold the God-given dignity of all the people of this state while safeguarding the rights of people of all faiths to practice their religion without undue burden from the government.
Following up on Marc's response to Dale Carpenter's post on the "weaponization" of RFRA: Dale expresses concern about RFRA-type laws being used as a "sword against civil rights." It is not my impression that those of us who support RFRA-type accommodation regimes expect or want them to be used in such a way.
As I see it -- and as I tried to set out in this short forthcoming paper -- the conversation about how to manage the conflict between some religious-liberty claims and some equality and non-discrimination claims has to proceed from an appreciation for the facts that "religious liberty" *is* a civil right and that the enterprise of protecting civil rights includes -- it has to include -- care for religious liberty. Here is the abstract:
This paper expands on a presentation at a recent conference, held at Harvard Law School, on the topic of “Religious Accommodations in the Age of Civil Rights.” In it, I emphasize that the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in as many cases and to as many persons and entities as possible, in a sincere effort to welcome religious minorities, objectors, and dissenters as fully as we can into what Justice Harlan called “the dignity and glory of American citizenship”? What barriers exist to the promotion and achievement of civil-rights goals through religious accommodations and how might these barriers be overcome? Are civil-rights laws being designed and enforced in ways that guard against unintended or unjustified disregard for or sacrifices of the civil (and human) right to religious liberty?
Rather an unfortunate metaphor in the by-line of Professor Dale Carpenter's recent post: "What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights."
One might have thought, even relatively recently, that religious freedom was a "civil right." But no longer: it is now said to be the enemy of "civil rights." And I suppose that what is "weaponized" will depend on one's perspective. From a different point of view, one might instead believe that it is the vast arsenal of antidiscrimination norms, and the staggering expansion of the state's interest in vindicating specific sorts of dignitarian harms, that have been "weaponized." But Professor Carpenter need not worry about one small sword in Indiana or Arkansas; the armamentarium arrayed against it is truly stunning.
Here's how I see the situation, as described in my essay, Free Exercise By Moonlight, from which I'll post a few selections in the coming days as it is intimately connected to these topical concerns (footnotes omitted):
The modern expansion of the reach of the state has resulted in a concomitant increase in the kinds of recognition, and validation, that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good. People want to be dignified by the state, their self-worth to be accorded official validation, and they perceive state-countenanced indignities meant for the protection of religious freedom as real injuries demanding state remediation.
Yet offenses to dignity are only the most extreme example of the overall expansion of government interests. For we are now at some considerable distance from Smith’s dystopian warnings about the threat of anarchy or governmental impotence that would result from overgenerous religious accommodations. In a society in which the government assumes an increasingly large role in the life of the citizenry, more injuries are transformed into legally (and perhaps even constitutionally) cognizable rights. The number and type of state interests that qualify as “compelling” swell to match the new dignitarian and other harms caused by permissive religious accommodations. And the protection of rights becomes a zero sum game, as every win for religious accommodation is a legally cognizable, but unvindicated, loss for somebody else.
