Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, July 17, 2014

Some Notes on the Libertas Project's Religious Freedom Workshop

I am just back from passing a wonderful few days of fellowship and reflection at the Libertas Project's workshop on religious freedom, hosted by the gracious and erudite Michael Moreland at Villanova Law School and sponsored by the generous Templeton Foundation. Together with other MOJ denizens Kevin Walsh and Michael Scaperlanda, I had the pleasure of talking together with a terrific group of learned political theorists, historians, theologians, and law professors about various issues--old and new--concerning the historical trajectory and current condition of the right of religious freedom.

Zak Calo and I had the privilege of moderating the seven sessions of the workshop. And the three of us--Michael, Zak, and I--worked together to assemble a panoramic set of readings to direct the group's attentions and reflections:

  • Chapters from Brad Gregory's The Unintended Reformation and Mark Lilla's The Stillborn God kicked things off
  • A historical session on Burke, the relationship of establishment and regimes of religious toleration, and the intellectual history of the maxim, "Christianity is part of the common law"
  • A session that included readings by Murray and Niebuhr set against United States v. Seeger
  • A session that considered Pope Benedict XVI's Regensburg Address, Micah Schwartzman's article about the moral justifiability of religion's special constitutional protection, and Town of Greece v. Galloway
  • And finally a few sessions devoted to Steve Smith's recent book, The Rise and Decline of American Religious Freedom, with applications to and speculations about various contemporary controversies

In all it was an extremely successful and productive event bringing together a broad range of disciplinary expertise and insight. I'll have a bit more to say about some of the more particular subjects that interested me, but for now just want to congratulate Michael on organizing this excellent conference.

Monday, July 14, 2014

Shiffrin on Hobby Lobby

First Amendment scholar Steven Shiffrin has a typically thoughtful post on the Hobby Lobby decision. Part of what makes the post so good is that it follows from Steve’s own longstanding and (to me) persuasive criticisms of the extraordinary lengths to which we are prepared to recognize rights of free speech. Parenthetically, the last time I checked, Steve is not particularly well-known for his dyed-in-the-wool conservatism. But setting aside that rather tedious ideological point, it is quite striking to see the expansive interpretation of the rights of speech (whatever the source–constitutional or statutory) in conjunction with what critics of decisions like Hobby Lobby argue should be a narrowing of the rights of religious freedom. Steven goes through a few of the issues, but among the best parts of Steve’s post is the following:

I am puzzled by the selective tolerance of secular liberals. These liberals are prepared to protect speech involving depictions of animal cruelty, gruesomely violent video games sold to children, and the intentional infliction of emotional distress at military funerals. They would also agree that the state should not compel people to violate their conscience without substantial justification.

Although the Court’s decision in Hobby Lobby makes clear that none of the involved employees would be denied access to insurance coverage for contraceptives, most secular liberals would deny the freedom of religion claim….

Why protect those who traffic in depictions of the abuse of animals and the like, but not protect the conscience of conservative Christians?

Saturday, July 12, 2014

Tragedy and Irony: Constitutional System, Political Suasion, and History (ADDENDUM Appended)

Here's another one for the Berg-DeGirolami exchange on the subject. For previous entries, see this, this, this, and this from my buddy Tom, and this and this from me. This post focuses on matters of constitutional system, political suasion, and my own appeal to history. 

But before getting to that, I want to address the much less central attitudinal or dispositional point about clever detachment. Tom's interlocutor interprets the passage I quoted from Shaffer in a very creative and appealing way, and Tom also notes that the ironic disposition can be turned inward as well. I don't wish to contest any of these points. I am not a Niebuhr scholar, and these are elegant defenses against my criticism. I guess the reason for my criticism is that I thought it was an important part of the ironic approach to point out to others that that their viewpoints and outlooks are partial and often incapable of seeing what's really true, that they have missed some self-deflating hypocrisy in their own position, and that if they only saw the missing piece, they'd be much more reasonable and would probably alter their views on some deeply held matter. If I have stated this view correctly (Tom, please tell me if not), whatever its merits, this is different than a tragic approach, which begins with the presumption that differences of opinion on deep questions among contestants really are what the contestants say they are, and then goes about explaining why they are so intractable. But I am happy to accept the rejoinder that tragedians can exhibit their own sins. Almost certainly one of these is a too-quick-and-easy pessimistic retreat. 

Onto more substantive matters.

1. Constitutional System: the Abstract and the Particular.

You say that you doubt that a tragic approach reflects "our constitutional system." The reason is that there is a shared, core consensus about certain basics of constitutional rights. Of my skepticism about deep, shared attachments, you write: "The same things could be said about even the most basic rights of religious freedom—or to pick a value that seems to be accepted across the constitutional spectrum today, the most basic rights of freedom of speech. The other side's ability to congregate even in private, or to exercise the most minimal ability to express its views, also “inevitably detracts from the larger moral vision” of its opponents. Is it the situation that there is no commitment in principle to any shared meaning of freedom of speech, even at the core—that every protection of even the most basic ability to speak reflects no more than a case-by-case compromise?" 

It is instructive (and sad, at least to me) that you must move so quickly away from religious freedom and to the freedom of speech. That move suggests that perhaps the ambit of tragedy is expanding, as the common core that you reference inexorably diminishes seemingly by the year. And for the first time at least since I have been writing (not a long time, I admit!), I am seeing serious arguments made by serious scholars who are contesting the core values of the freedom of speech as well. In a very few years, I would not be surprised in the least to see that these arguments (like those about religious freedom) have become more mainstream as well.

But I think I can agree with the basic point you are making, even as to religious freedom, if phrased in something like this way (I make the fuller argument in Chapter 4 of my book): It is quite possible to decide whether a certain set of values corresponding to a constitutional right (like the freedom of speech) is good in the abstract, without being able to decide in advance whether it is powerful enough in a specific situation to defeat another conflicting value. But it is only in the value's embodiment in a particular, real-world struggle that we can make judgments about how strong it really is. Take values like equality, law-abidingness, autonomy, the authority of conscience, liberty, and tolerance.

Continue reading

Thursday, July 10, 2014

The Connection of Separationism and Radically Limited Government

In rereading a wonderful piece by Professor Michael McConnell about Edmund Burke’s view of the relationship between an established religion and a regime of toleration of religion, I came across this deeply insightful discussion of the close connection of a separationist idea of religion and government (as envisioned by Thomas Jefferson, for example) and the idea that government itself had very limited functions in the first place:

There is a close, but generally unrecognized, connection between the idea of the “Wall of Separation” and the idea of a radically limited government. Once government shakes off its limited role and concerns itself with the general welfare of the people, including their cultural and intellectual lives, it has leapt the “Wall” and entered the traditional sphere of religion. In contrast to many of our Founders, Burke had a more modern conception of the jurisdiction of the state, which did not permit him the easy answer of a “Wall of Separation.” If the government is “a partnership in all science; a partnership in all art; a partnership in every virtue and in all perfection,” then it necessarily will be conveying a collective teaching on science, art, virtue, and perfection (whether we label the teaching a “religion” or not). It follows not that an establishment is desirable, but that it is inescapable. Some sort of opinions will necessarily guide the state in its “superintending control over…the publicly propagated doctrines of men.” If the Jeffersonian-Madisonian ideal of the limited state is abandoned as naive or outmoded, then the serious questions become how to protect against arbitrary or tyrannical use of this power and how to respect the legitimate rights of those who disagree with the official orthodoxy.

Michael W. McConnell, Establishment and Toleration in Edmund Burke’s ‘Constitution of Freedom,’ 1995 Supreme Court Review 393, 444-45 (with citations to Burke’s Reflections on the Revolution in France and his Speech on the Petition of the Unitarians).

Sunday, July 6, 2014

Originalist Fusionism

Soon I will return to spar a bit with Tom about irony and the barbarian hordes in the thoughtful middle.

But first, here's something for the originalism debates. The success of original meaning in displacing original intent as the basis for originalist jurisprudence is well known. Original meaning is widely thought to avoid some of the methodological difficulties associated with original intention. And several theorists believe that original meaning is both more politically legitimate and truer to the activity of legal interpretation than original intention.

Yet recently, something of an intentionalist revival has come on the scene. Note that the revival is almost always inclusive of original meaning: the claim is not the mirror image of the new originalist claim--i.e., that original meaning should displace original intention completely. Instead, it is that the exclusion of original intention entirely either leaves originalism incomplete or has had some other ill effects on originalism. The new intentionalism therefore could be plausibly described as a fusionist project--bringing together considerations of original meaning and original intent as both relevant.

Exhibit A: Donald Drakeman's and Joel Alicea's work on the limits of the new originalism. What happens when originalist materials point to two or more equally persuasive original public meanings?  The authors discuss a case from 1796 -- Hylton v. United States -- which involved the constitutionality of a federal tax on carriages. The tax was resisted by Hylton, a Virginia businessman, and other Southerners who believed that it was inequitable because of the greater prevalence of carriages in the South. The case pitted Hamilton against Madison (who had argued against the tax's constitutionality) and the issue was whether this new tax should be characterized as a direct tax or an excise tax, and "what to do when the best evidence of contemporary usage points in two directions."  The arguments advanced by lawyers for and against the government proceed through all of the accepted new originalist sources -- dictionaries, ordinary or customary usage before the framing of the Constitution (of many sorts), resistance to the "foreign Lexicons" of "consolidated" as opposed to "confederated" governments, commentaries, poems, ratification materials, congressional debates, and so on. Hamilton won the day, arguing that Adam Smith's definition of a tax in The Wealth of Nations "was probably contemplated . . . by [the] Convention."  The authors note this as an example of original intentions, and they also emphasize that the three opinions in the case all focused to varying degrees on framers' intentions.  The reason for this focus is best summarized by Justice Paterson: "the natural and common, or technical and appropriate, meaning of the words, duty or excise, is not easy to ascertain."  And the authors go on to argue that recourse to original intent is a perfectly reasonable move when original meaning yields equally plausible but conflicting understandings.  The authors call it original intent as tiebreaker: "when the meaning must be sought outside the corners of the constitutional text, why not opt for answering the question 'What were the framers actually trying to accomplish in using this language?' rather than letting Samuel Johnson . . . or Hans-Georg Gadamer . . . make the final determination?" And it might be quite common that originalist materials would point to two or more plausible meanings of a particular clause. See, for example, the Establishment Clause.

Exhibit B: Steve Smith's new post at the Liberty Law blog on the shortcomings of the new originalism. Smith focuses on the new originalism's complete dissociation of original meaning and original expected applications, which he argues has had the effect of depriving originalism of some of its central political virtue. He writes: 

At bottom, after all, the basic idea was, and is—or should be—that “We the People” are entitled to govern ourselves. And for that to happen, we need a process in which we can intelligently decide whether or not to enact a constitutional provision on the basis of an understanding of what the provision will and will not do—of what its consequences will be. To be sure, the People can’t reasonably expect to foresee every little contingency and every specific application of our enactments. But if a constitutional provision ends up having far-reaching consequences that its enactors never intended—that they might have found shocking, that if foreseen might have led them not to enact the provision at all—then not only democracy but also basic rationality are thereby betrayed.

We are then being governed, in the name of the Constitution, by something that “We the People” didn’t think we were approving and perhaps never would have approved. Adopting a constitutional provision becomes less like intelligent, rational self-governance and more like throwing darts in the dark: we adopt a constitutional provision, but it’s anybody’s guess what the provision may turn out to mean.

Smith suggests at the end of the piece that it might be good for "some new movement to emerge devoted to the true criterion for constitutional interpretation," and he refers to an unpublished paper of his dealing with a "maker-meaning nexus." I haven't read the piece, but it sounds very much like a kind of originalist fusionism. One might even say that something like original expected applications (drawn from intentionalist sources) could be used as a side-constraint on original meaning. That side-constraint could operate only in cases of ambiguity (a la Alicea/Drakeman) or as a general restraint on it.

I could list other exhibits, and there are other important intentionalist champions out there, probably none more interesting that Richard Ekins (though my tentative sense, subject I hope to reader correction, is that Professor Ekins's writing has not taken a position on intentionalism in the originalism debates). But I wonder whether originalist fusionism (or originalist fusionisms of various kinds) might be on the way.

Tuesday, July 1, 2014

Two Items on Hobby Lobby

Here are two items discussing the case--a decision that is, consistent with Patrick Brennan's and Tom Berg's observations, quite narrow in scope: first, a podcast that Mark Movsesian and I recorded explaining the holding and offering some thoughts about future issues; and second, a comment on the Liberty Fund site.

I look forward to reading other contributors' reflections.

Friday, June 27, 2014

Pope Francis's Remarks on Religious Freedom for Our Conference (DeGirolami trans.)

I took a shot at translating Pope Francis’s remarks on religious freedom, which he addressed to the participants at our conference on international religious freedom (an official translation will be issued later). I have tried to be faithful to the text, sacrificing a bit of readability. I have done this in part because some partial translations I’ve seen are not true enough to the original, even if the resulting translation here still leaves some open spaces in meaning (which, at any rate, should not be filled by the translator). Here is the original in Italian. I’ve also got a few comments at the end of the translation.

I welcome you on the occasion of your international conference, dear brothers and sisters. I thank Professor Giuseppe Dalla Torre for his courteous words. 

Recently the debate about religious freedom has become very intense, asking questions of both governments and religious denominations. The Catholic Church, in this respect, refers to the Declaration Dignitatis Humanae, one of the most important documents of the Ecumenical Council Vatican II.

In effect, every human being is a “seeker” of truth about his own origins and his own destiny. In his mind and in his heart arise questions and thoughts that cannot be repressed or suffocated, inasmuch as they emerge from the deeps and are by nature connected with the intimate essence of the person. These are religious questions and they demand religious freedom to manifest themselves fully. These questions seek to shed light on the authentic meaning of existence, on the ties that connect it to the cosmos and to history, and they mean to pierce the darkness by which the human condition would be surrounded if such questions were not asked or if they remained answerless. The Psalmist says: “When I see your heavens, work of your fingers/ the moon and the stars that you have fixed, / what then is man that you would remember him, / a son of man that you would care for him?” Psalms 8: 3-4.

Reason recognizes in religious freedom a fundamental right of man that reflects his highest dignity, that of the capacity to seek the truth and to adhere to it, and recognizes in that right an indispensable condition in order to deploy his own potentialities. Religious freedom is not only the freedom of a thought or of a private sect. It is freedom to live according to ethical principles consequent to discovered truth, whether privately or publicly. This is a great challenge in the globalized world, where weak thought—which is like a disease—lowers the general ethical level, and in the name of a false notion of tolerance ends by persecuting those who defend the truth about man and that truth’s ethical consequences.

Legal regimes, national or international, are called to recognize, guarantee, and protect religious freedom, which is a right that inheres intrinsically in the nature of man, in his dignity as a free being, and is also an indicator of a healthy democracy and one of the principal fonts of the legitimacy of the state.

Religious freedom, implemented in constitutions and in laws and translated into coherent behaviors, favors the development of relationships of mutual respect among the different faiths and their healthful collaboration with the state and political society, without confusion of roles and without antagonisms. In place of the global conflict of values, coming from a nucleus of universally shared values, a global collaboration in view of the common good becomes possible. 

By the light of the acquisitions of reason, confirmed and perfected by revelation, and of the civil progress of peoples, it is incomprehensible and worrisome that, even today, in the world there remain discriminations and restrictions of rights for the sole reason of belonging to and professing publicly a certain faith. It is unacceptable that true and actual persecutions exist for reasons of religious membership! And wars too! This wounds reason, attacks peace, and humiliates the dignity of man.

It is a motive of great pain for me to observe that Christians in the world suffer the largest number of such discriminations. Persecution against Christians today is even more powerful than in the first centuries of the Church, and there are more Christian martyrs than in that era. This is happening more than 1700 years after the edict of Constantine, which granted freedom to Christians to profess their faith publicly.

I hope profoundly that your conference illustrates with depth and scientific rigor the reasons that today oblige the legal order to respect and defend religious freedom. I thank you for this contribution. I ask you to pray for me. From my heart I wish you the best and I ask God to bless you. Thank you.

Some brief thoughts (and I hope others will add theirs as well):

1. A note on the fourth paragraph with Patrick Brennan’s good questions in mind (Patrick was getting the English translation from a different source). According to my translation, the Pope did not say that “every person has a right to seek the freedom to live according to ethical principles, both privately and publicly, consequent to the truth one has found.” The full paragraph fragment in Italian is:

La ragione riconosce nella libertà religiosa un diritto fondamentale dell’uomo che riflette la sua più alta dignità, quella di poter cercare la verità e di aderirvi, e riconosce in essa una condizione indispensabile per poter dispiegare tutta la propria potenzialità. La libertà religiosa non è solo quella di un pensiero o di un culto privato. E’ libertà di vivere secondo i principi etici conseguenti alla verità trovata, sia privatamente che pubblicamente.

The phrase in question, as well as the entire paragraph fragment, is, I think, more faithfully translated as “discovered truth” rather than “the truth one has found” ; “discovered truth” refers back to the same truth that is being sought for in the previous section of this paragraph.

2. Note the reference to the “global clash of values” in paragraph six–a specific comment on our conference–and the Pope’s statement that such a clash can be overcome. That struck me as relevant to the discussion that Tom Berg and I have been having herehere, and here.

3. Nevertheless, in spite of his optimism about the prospects for religious freedom, the Pope expresses great distress about the plight of Christians in the world today, as can be seen in the paragraphs toward the close of the speech.

Wednesday, June 25, 2014

Irony and Tragedy: Practicalities

This is the second of two posts responding to Tom's post below about irony and tragedy. In the first, I tried to lay out what I perceive as some of the conceptual differences between a tragic and an ironic approach generally with some application to more theoretical issues in the interpretation of the religion clauses. In this one, I try to address some of the challenges that Tom poses about the resources (or lack thereof) that tragedy might draw on for practical purposes.

Tom argues that irony has various practical advantages over tragedy inasmuch as it provides a resource for issuing challenges and for striking deals. He raises the arguments that he and others have been making on behalf of religious exemptions as examples of the critique from irony. And he suggests that a tragic view may not offer the same kind of practical resource because it often denies that the values advocated by one side in a conflict are commensurable with the values championed by the other side.

These are all fair points. Tom is right that tragedy opens up the domain of incommensurable values. Tom is also right that the tragic view will be far less amenable as a resource for the sorts of critiques that he argues have been important.

But I wonder very much whether the ironic critique is…true.

Continue reading

Irony and Tragedy: Concepts

Thanks to Tom for his post and his very good questions. Tom and I have been having this discussion for a good while and it is a pleasure to talk together again. Several years ago, Tom put together a wonderful conference on Niebuhr, Christian realism, and law at the University of St. Thomas. I wrote a paper for that conference that I never published on the differences between tragedy and irony, and Tom’s post made me look back at it.

My thoughts about Tom’s post are in two posts. The first post concerns the conceptual difference between tragedy, comedy, and irony as I understand the terms. The second post addresses some of the more concrete practical challenges and questions Tom poses.

This post is long, as is the next one. For the impatient reader, the quick version is that I am a tragedian and not an ironist because I believe that tragedy better describes the nature of conflict in the world, or at least in that corner of the world that Mirror of Justice contributors sometimes think about, the law of religious freedom. Deep and true conflict, and not simply the appearance of conflict that awaits the ironist’s clever harmonization, is our condition. The tragic perspective helps us to appreciate the true breadth of the chasms that separate us—chasms that, in our day, are expanding. And that is why, much as I appreciate the virtues of the ironist, and much as I admire the efforts of Tom, Rick, Doug Laycock, Robin Wilson and others to reach the sorts of agreements Tom mentions, I believe that those agreements are at best temporary, pragmatic settlements. That is not to denigrate them at all: indeed, I believe that Niebuhr himself took little more than a series of pragmatic micro-deals to be the concrete political expression of his ironic Christian realism. Negotiating conflict sensibly is no small feat. But, to the extent they have been achieved (which is, regrettably, not often enough), those agreements are not larger victories of principle. They do not tell us much at all about the commensurability of the clashing values. And their fragility and evanescence is some evidence that tragedy, not irony, is the deep force at work. Though I do believe that the tragic view has something to say about conflict resolution—something different than what the ironist says—the reason to be a tragedian is not to resolve conflict but to perceive as completely as possible the nature and depth of our divisions. They are very great.

Concepts.  What are we talking about in using these terms? Let me focus first on Niebuhrian irony, and then contrast it with a tragic view.

Continue reading

Tuesday, June 24, 2014

Reflections on "International Religious Freedom and the Global Clash of Values"

Following up on my post below, I thought to add a few thoughts about some of the themes that emerged from the presentations on international religious freedom at our conference in Rome.

The keynote address was delivered by the Berkley Center’s Tom Farr, whose primary claim was that in order for international religious freedom to thrive as a human right, we need a deeper grounding--both principled and pragmatic--of the importance of the right of religious freedom as both an anthropological reality and as a practical necessity. I had the honor of moderating Tom’s talk and asked him whether in this particular climate what was needed was a thicker account of religious freedom or instead an (even) thinner account. He gave a thoughtful answer reflecting both the need for deep structures of justification and the difficulty of achieving consensus about them.

The first panel concerned the politics of international religious freedom and included the United States Ambassador to the Holy See, Ken Hackett, the United Nations Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt, and Pasquale Annicchino of the European University Institute. It was in Dr. Bielefeldt’s talk that a useful tension began to emerge among some of the speakers--between those who were bullish or optimistic about the prospect that international law can effectively promote religious freedom and those who were a little more skeptical. Dr. Bielefeldt falls into the more optimistic camp--a good thing indeed, given his position. He emphasized the difference between the promotion of religious freedom in order to advance civic peace, on the one hand, and its promotion in order to vindicate a basic human right, on the other. Here I was reminded of the controversial “civic peace” justification in the American law of religious freedom and that Rick has written about so well.

The second panel dealt with comparative perspectives on international religious freedom. The perspectives compared included those of the member states of the Council of Europe and of Italy specifically. I was particularly interested in Marco Ventura’s lucid presentation about the difference between divergent and convergent approaches to religious freedom among and across European member states. Professor Ventura described the move toward convergence and argued for even greater convergence than has already been achieved. I had some questions about this coming from a country that has also struggled with the issue of convergence and divergence in the constitutional law of religious freedom. Again, the tension between globalism and regionalism was in evidence in a slightly different way.

The third panel concerned Islamic and Christian perspectives on international religious freedom, and included presentations by Abdullahi Ahmed An-Na’im, Olivier Roy, and Nina Shea. Here the primary point of tension involved the causes or roots of religious persecution of these two major religious groups. And here, too, there was skepticism, principally from Professor An-Na’im, about the efficacy of human rights regimes to protect religious freedom. “There was a world before international human rights, and there will be a world after international human rights,” he said.

In all, a very rewarding set of presentations.