Eric Claeys raises a good question: why do we, and the Court, seem to talk more about the Founders' views in religion cases than in other areas of individual rights law? He also offers an interesting suggestion involving path-dependence: Hugo Black got to "liberal" results at the beginning of the Court's liberal-dominated era by using history (badly perhaps but still history), and so liberals could follow that track without having to resort to "living Constitution" moves.
To me, though, this begs a further question: why was Black able to draw so much on history about religion? My suggestion, which I think ends up complementing Eric's, is that there are more founding-era historical materials relevant to today in the religion area than there are in other areas. The era of the founding also happened to be an era of great ferment in American church-state relationships, with clergy subsidies coming under withering challenge, new voluntarist-oriented denominations arising, and the concept of free exercise of religion replacing the concept of toleration of dissenting faiths. Those issues all provoked extensive debate and considerable legal changes, and they bear at least some resemblance to issues today. As a result, both sides in current disputes can find not just snippets of history, but substantial materials, to support their arguments. For example -- and here's the point of contact with Eric -- Hugo Black, other strict separationists, and secularists could find a founding-era model in Jefferson. And good lawyers of any stripe will use history when they've got some to work with.
That doesn't necessarily mean that any of these historical arguments are correct or useful for interpreting the First Amendment. Some may be. Or on the other hand, perhaps the conflicting arguments cancel each other out: for every separationist Jefferson there's a George Washington saying that religion is crucial to national morality. Or perhaps, as Steve Smith, Kurt Lash, and others claim, historians commit category mistakes if they treat founding-era arguments about the federal religion provisions as arguments about how government in general should treat religion (and thus how states should treat it under the incorporated First Amendment). And if so, perhaps the arguments about the founding era will have played themselves out and we'll turn, as Eric suggests, to normative political theory (although there might still be a lot to say about religion leading up to the Fourteenth Amendment and incorporation). Nevertheless, there is a lot of relevant founding-era material for people on both sides to deploy, even if it can be argued that their various uses are inaccurate or misplaced.
This seems to me less true in other Bill of Rights areas. With a few exceptions, the founding period did not see great debates over the bounds of free speech, the range of acceptable punishments, the scope of the jury-trial right, etc. (Even the great free speech debate, over the Sedition Act, came post-First-Amendment.) Perhaps this reflects the fact that as to most matters under the Bill of Rights, the founding generation thought they were just reiterating historic rights of Englishmen on which they generally agreed; whereas with religion, at least with the question of establishment, many Americans were self-consciously breaking from the English model, while others were defending it (albeit in a relaxed form like taxing people for a variety of churches rather than just one). So the debates on religion were more fundamental, more extensive, and left more material for people today to use/misuse.
Thoughts?
Tom
Thursday, December 13, 2007
In response to Chris Eberle, we -- and not just we lawyers -- talk and argue about the founders for a couple of reasons. (This post is mostly description, and only in part justification.) First, in the legal realm, the originalist theory of interpretation holds that the Constitution, like other legal documents, should be interpreted now according to the meaning it had at the time of its adoption, either for those who enacted/ratified it or for the general public (as to whom the founders' statements are still evidence). The argument is that the authoritative legal act took place at that time and so its meaning should be set as of then, combined with an argument (championed e.g. by Justice Scalia) that alternative inquiries (like "what should be the role of religion in public life today?") are far more disputed and uncertain than asking "What led the founding generation to coalesce behind certain constitutional enactments?" Originalism can be criticized of course, and it's by no means the exclusive view, but it's significant enough -- and there's enough agreement in legal culture that original meaning is a significant factor in interpretation -- to warrant having arguments over the Founders' views.
Second, not only judges and lawyers but a lot of Americans seem to care about the Founders' views. Because our nation is built less than others on geographic and ethnic ties and more on a sense of a shared project, the people who started that project -- who are seen as its source, or closer to its source, of inspiration -- have an extra claim on attention. In contrast to Prof. Eberle, I see this attitude as having "Protestant" overtones, in that Americans look back to the original documents and the generation that produced them -- much as evangelical Protestants look back to the scriptures and the first-century church -- more than they emphasize an evolving tradition. (I just saw Steve Smith's comments making the same point.) Of course you can question the analogy between the Christian relevatory generation and the American founding, but for "a nation with the soul of a church" the analogical move isn't that surprising. Even if the analogy is bad, the sense that our national project starts from some founding principles, to which that generation was closest, is very understandable.
Tom
Tuesday, December 11, 2007
Thanks, Rob, for linking to Geoff Stone's blog post on the founders and religion. The Stone post is depressingly old hat: an exaggerated, historically selective "secular nation" claim in reaction to an exaggerated, historically selective set of "Christian nation" claims (very few of which Romney actually made in his speech).
First, even as to the framers Prof. Stone cites, he oversimplifies the record. To take just one example concerning Washington: It's hard to see the belief that "religion was fundamentally a private and personal matter that had no place in the political life of [the] nation" in the president who issued an official proclamation in 1789 that "[i]t is the duty of all nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor." Every president after him, except for Jefferson but including Adams, issued similar statements. These are not restrictively Christian in content; moreover, even such ecumenical official statements may be in tension with other, more separationist elements of the founding tradition on religion. But to say that the framers thought religion "had no place in political life" is wildly overbroad.
More importantly, as Rob notes, the confident claim that "[the framers] would have been appalled at the idea of the federal government sponsoring 'faith-based' initiatives'" is unsupportable. At the time of the founding, virtually all social services and education were provided by private organizations, and virtually all of those were religious. There is little or no evidence that the framers, even the ones Prof. Stone emphasizes, had a problem with that fact. Once government enters into these areas in a massive way -- education in the 19th century, social services in the 20th -- you can't simply say that allowing people to use government support at faith-based providers, if they choose, is a retreat from our founding tradition of religious liberty. Even less convincing is Prof. Stone's implicit claim that the equal eligibility of faith-based providers rests on a "Christian nation" premise. Rather, making them equally eligible -- including non-Christian faith-based providers, as the programs do include -- preserves the ability of citizens to receive their education or social services in a religious setting if they wish, without government pressuring them through selective funding to forego that option. That has precious little to do with any "Christian nation" claims.
Tom B.
Friday, December 7, 2007
Susan asks about the Philadelphia/Boy Scouts case:
If the ordinance in fact requires that tenants agree to a nondiscrimination clause, compliance with the ordinance would seem to oust the Boy Scouts regardless of the amount of rent they pay.
It's possible the city thinks a court would rule it unconstitutional to punish a full-paying tenant by evicting it for its standard concerning homosexuality (when, as with the Scouts, that standard is tied to its ideological views against homosexuality). The SCT's Boy Scouts v. Dale decision on freedom of expressive association would bar the city from subjecting the Scouts to civil liability for their standard. Presumably that's why, although the city's human-rights ordinance actually prohibits sexual-orientation discrimination not just by city tenants but by all "public accommodations" (which usually is interpreted to include large private entities like the Scouts), the city apparently hasn't threatened to sue the Scouts under the ordinance. The city might think that eviction of a tenant willing to pay market rent would be seen as just as much of a constitutional burden as would a judgment of liability -- but that refusing to continue a subsidized rental would not be seen as a burden.
It's interesting that the Philadelphia posts are juxtaposed with the post about the DOJ determination on religious hiring rights by federally funded religious organizations. Setting aside the issues of reliance raised by the long relationship and the Scouts' improvements to the building, I think the constitutional claims by the religious organizations are stronger, since there are distinctive free exercise issues in the religious-hiring context. In addition, there's more plausibility in the government's concern that it could be appearing to "endorse" sexual-orientation discrimination when it has a special subsidy relationship with the organization (as the city apparently had with the Boy Scouts) than when it's providing funding for a defined service offered by a wide range of organizations, some of which have traditional sexual-morality rules but many of which don't. (Of course, the city's goal is not just to avoid endorsing traditional sexual morality; it's to discourage it.)
Tom
Law prof Carl Esbeck, friend and colleague of mine and RIck's in Christian Legal Society matters, calls attention to an important recent determination by the Justice Department: that religious organizations receiving federal funds are protected by the Religious Freedom Restoration Act (RFRA) in their continued ability to consider religion in hiring employees. A number of federal funding statutes (including the one at issue in the particular DOJ grant for anti-gang efforts) contain provisions flatly forbidding grantees to engage in religious discrimination in employment. But as many of us have pointed out, "religious discrimination" by religious providers is different: it reflects a perfectly legitimate demand that employees be committed to the organization's mission, just as the Sierra Club can favor environmentalists in hiring and Planned Parenthood can favor pro-choicers. This op-ed by Carl summarizes these and other arguments, and notes the applicability of religious hiring rights to cases where a religious provider requires that employees adhere to its belief that sexual intimacy should be limited to marriage.
Because RFRA overrides other federal statutes unless they're explicitly excluded from its application, this determination is relevant to funding programs under many statutes. And although as I understand it, the DOJ determination formally applies only to DOJ-administered programs, it seems appropriate and likely that other agencies will pay attention to it for their own programs. This amounts to an important commitment by the Bush adminstration to ensuring that an organization can cooperate with civil government in helping the needy without giving up its religious identity.
As you might expect, Americans United for Separation of Church and State is not happy, arguing that "it’s hard to see what [an employee's religious] beliefs have to do with working in a government-funded, presumably secular, anti-gang program." But this far too narrowly conceives the organization's interests in having employees, in Carl's words, "aligned with the energizing core of its mission." Even if they may not evangelize beneficiaries or hold religious services in the funded program, employees may speak to each other informally, thereby encouraging (or discouraging) each other's faith, and in many obvious and subtle ways they may model (or fail to model) to beneficiaries the principles that the organization believes are important.
Tom
Wednesday, December 5, 2007
From Democrats for Life of America:
Senator Robert Casey (D-PA) [today] introduced the Pregnant Women Support Act into the United States Senate. S. 2407, similar to legislation (H.R. 3192) introduced by Lincoln Davis (D-TN) earlier this year in the U.S. House, is designed to reduce the number of abortions by aiding those women who feel they have no other option. . . .
One of the key provisions of the proposal calls for banning the discriminatory practice against pregnant women in the health insurance industry by removing pregnancy from all "pre-existing condition" lists in health care. Other provisions call for making adoption tax credits permanent, provides grants for low-income parenting college students, fully funding the federal WIC program, increased funding for domestic violence programs, and provides free home visits by registered nurses for new mothers.
See previous posts about this legislation here, here, and here.
Tom
Tuesday, December 4, 2007
According to this press release from a group called Faith in Public Life:
Catholic social justice leaders, priests, religious sisters and evangelical Christians want a “ceasefire in the Christmas culture wars.” These leaders are challenging Bill O’Reilly of Fox News and others who have lashed out against a so-called secular “War on Christmas” to join them in a new campaign that restores a focus on the common good during this holy season.
In an “Open Letter to Christmas Culture Warriors” to be published as an advertisement in the New York Post, Washington Times and National Catholic Reporter, the group says that outrage over some department stores using “Happy Holidays” instead of “Merry Christmas” fails to address the profound moral challenges we face in confronting the threats to human dignity in our world.
“We believe the real assault on Christmas is how a season of peace, forgiveness and goodwill has been sidelined by a focus on excessive consumerism,” the letter states. “The powerful message Christ brings to the world is ‘good news for the poor.’ Instead, Christmas is being reduced to a corporate-sponsored holiday that idolizes commerce and materialism.”
I'm basically sympathetic to this kind of critique. Isn't it true that many of the "keep America Christian" efforts seem to be motivated more by the idea of retaining (cultural) power than the idea of pursuing Christ-like servanthood?
But there's a big potential pitfall in this criticism too. The culture warriors may often overlook servanthood, but they are right to oppose secularism -- and the social-justice Christians need that opposition to secularism in order for there to be public space for their own critique. If it's improper to bring up Jesus's name in pluralistic public settings (including department stores), then you can't proclaim, "Jesus came to bring good news to the poor and oppressed," in those settings. The social-justice types need to give one cheer, maybe two, for the culture warriors.
The "Christian nation" notion can be criticized for promoting arrogance rather than servanthood; the critique can even be "secular" in the sense that it emphasizes what Jesus means for this world, not just for the church or for our souls after death. But those critics should not, as they sometimes do, buy into secularism in the sense of "leave Jesus out of public settings so as to respect others" -- because that cuts the ground from under their own proclamations.
I've explored this distinction between servanthood and secularism in this article (posted at the right), and in this one called "Christianity and the Secular in Modern Public Life" (link is near the bottom of page, not the top).
Tom
Thursday, November 29, 2007
The negative reaction of some voters to Mitt Romney's Mormonism has prompted The New Republic's Jonathan Chait to issue the latest broadside against "faith-based politics." He begins by trying to counter the argument that demanding "secularism [in politics] is an assault upon faith":
Secular political discourse does not place religious voters or candidates at a disadvantage. It merely denies them an advantage. A religious candidate can campaign on the war in Iraq or health care or gay marriage just as easily as a secular candidate can. But a secular candidate can't run on his faith in the way a religious candidate can. ("Secular," of course, means a lack of political religiosity, rather than a lack of religious belief.) Religion-infused politics places a massive handicap on candidates and voters who are secular or subscribe to minority religions.
This argument -- that publicly-religious politicians have an unfair advantage -- has some validity in one context, but it's totally unconvincing in another.
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