Below Rick notes the passing of Professor Jean Bethke Elshtain, an important and distinctive voice in political and moral theory. My Catholic Social Thought students will remember her essay on human dignity, “The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries,” which begins as an exploration of Professor Michael Perry’s work and then branches off into its own territory.
One of my favorite Elshtain essays is “The Perils of Legal Moralism,” published in the Journal of Law and Politics in 2004 and delivered as the Meador Lecture at the University of Virginia–a lecture on religion and law. I am on record as expressing skepticism about the epithet “legal moralism,” which is often said to mean implausible things that no serious person could possibly believe (e.g., the view that morality and legality should actually be co-terminous, or that all “sins” should be criminalized) and then promptly hurled at those whose moral views differ from those of the author.
But Professor Elshtain’s essay takes a subtle approach to the question of legal moralism, describing it more as a tendency or a cast of mind than as a fully worked out theoretical position. Legal moralism in her essay is the tendency to believe that the only way to have a moral life is through law: “Responsible citizenship means that moral adults can realize a life of freedom understood as ordered liberty–of both self and society. But, as a society, we seem to think people are stuck rather permanently in a stage of moral infancy or, at best, adolescence, as we rush to “make a law” to cover every contingency, thereby blanketing all of life with a moralistic mandate.” Here is a useful example of the legal moralist cast of mind and the way in which it stunts and deforms a society’s moral life:
Another AP story, this time out of South Dakota. A “teen-ager who flipped up his middle finger and mouthed the f-word several times at a school official was properly convicted of disorderly conduct, the state Supreme Court majority ruled.” The story makes it clear that the boy and his brother dogged the principal and his family as they were leaving a grocery store. In a pick-up truck, the boys followed the van driven by the principal for about a mile before veering off. What is fascinating about this case is that, rather than focusing on the potential dangers of following another vehicle through traffic–although in South Dakota there isn’t very much of that–or the danger of cutting off the car driven by the principal in the grocery store parking lot, it was the rude gesture that incurred censure. I am not a free speech absolutist, but it seems strange to charge the teenager for a gesture and for mouthing an admittedly rude word and equally strange for his defense to call the word and gesture a form of “free speech”–legal moralisms from both sides, in other words, as the ante is upped. In the process, speech is trivialized and rude teen behavior is treated as an actionable offense in the legal sense rather than as the occasion for some serious intervention by responsible adults: a legal occasion rather than a teaching occasion, let’s say.
Viewed as an orientation or a cast of mind, legal moralism’s greatest flaw is its tendency toward mapping out the moral life by codifying it. A society in which the legal moralist cast of mind is ascendant has great difficulty understanding and processing true goodness and true evil:
We are all wary of those who go outside the code or go too far, even in an undeniably “good” direction. Who among us could really live the life of Blessed Mother Theresa of Calcutta, going into the filthy, urine and fecal saturated gutters of New Delhi to pluck dying untouchables from what bade to be their deathbeds in order to care lovingly for them in their last days on earth? We admire–but from a safe distance. Something in us tells us that this is going too far; our codes don’t require this sort of thing. So we invent categories like “supererogation” for those who go beyond what the code requires.
At the other end of the scale of possibility, we have great difficulty dealing with evil when it walks among us or stalks us from afar. What Taylor calls ‘Providential Deism,’ a one-sided “definition of Christianity” took over in the West–a kind of “liberal, sanitized Christianity” which knows not how to deal with suffering or sin or evil.
Quoting Charles Taylor, Elshtain writes that “‘modern nomolatry’–the idolatry of the law–'dumbs us down, morally and spiritually.'”
I cannot do justice to the entire essay in this post. It contains other insights about codified ethical systems, the role of religion, and many other matters. Here's the conclusion:
Alexis de Tocqueville, in his masterwork, Democracy in America, sees the law, as well as religion, as essential to democracy’s decent functioning. Lawyers have a concern with proper order and formalities as one way to achieve a certain distance from the tumult and from ill-considered passions. Years of study, Tocqueville opines optimistically, breed in lawyers an intimate feel for a complex form of knowledge. Lawyers, in other words, form an epistemic community of sorts. A problem emerges if a comprehensive ideology or code is thrown over the law, occluding or short-circuiting its unique function and practices.
Law concerns people in their concreteness. It speaks to this moment, that event, that body, that person holding a gun. It speaks to our highest aspirations for human decency and rights and these, too, involve, not abstract, but flesh and blood human beings with whom we share a community, a nation, a fragile globe. Human rights are about blood and bones and rotting corpses and speaks directly to such realities. The law must make thick and thin distinctions of the sort comprehensive moralisms disdain. Interestingly enough, this understanding of the concrete role of the law meshes with the emphasis in Christian theology on the concreteness of being a member of a community of the faithful. [Dietrich] Bonhoeffer, again, is instructive. What Christians profess, he insisted, is not some metaphysical abstraction but a concrete belief in a God-man who died a very human death. If we fly to the heavens or to the metaphysical ether too quickly, we lose the moralities and ethics that are the very heart of the matter, for citizens and for religious believers alike.
Rest in peace.
Thursday, August 1, 2013
Professor Perry Dane has a thoughtful comment on the competing positions in the contraception mandate controversy. As someone who is partial to an analysis that emphasizes irreconcilable conflict in religious freedom disputes, I found Perry's short piece useful. But I wonder whether, in light of the fragment that I've quoted from his conclusion below, one could argue that "wholesale" conflicts about the Free Exercise Clause and religious exemption more broadly have become more common in part because the "wholesale" conflicts pertaining to the Establishment Clause have been steadily but inexorably increasing. Wholesale, not retail, conflict seems to be the order of the day in religion clause law:
I have written elsewhere that
defining the relationship between religion and the civil state has both a
“wholesale” and a “retail” component. The Establishment Clause defines general, wholesale,
boundaries between church and state. Religion-based exemptions can then adjust
those lines in specific, retail, cases to take into account the convictions of
specific religious traditions. The “wholesale” work in defining the
church-state dispensation goes beyond the Establishment Clause, though. It also
has important political and cultural pieces, and, as here, can find its way
into arguments over specific claims of religious liberty. Thus, both sides in
the contraceptive mandate are venting wholesale grievances, suggesting that the
other side has simply overreached beyond its proper competence or domain.
The truth, though, is that this
controversy is not amenable to wholesale treatment. In this and many other
areas, there are no sharp boundaries between the proper spheres of activity of
church and state. Though we can and must draw certain lines, particularly where
the work of the Establishment Clause is concerned, in many contexts the
competencies of church and state simply overlap. And that leaves only the
mundane, steady work of trying to accommodate each to the other as best, and as
fairly, as we can.
Tuesday, July 30, 2013
Mirror of Justice friend and University of Richmond law professor Kevin Walsh has a thoughtful and informative post about the Third Circuit's recent decision in Conestoga Wood Specialties Corp. v. US Department of Health and Human Services, which I noted and discussed here. One thing that Kevin's post makes me think is that given the nature of the legislative purpose for enacting RFRA, it is probable that the meaning of "exercise" was intended to be close to the constitutional meaning (pre-Smith). It would have been useful to have more statutory analysis of this type from the Third Circuit. From Kevin's post:
Consider the facts of Sherbert v. Verner, 374 U.S. 398 (1963), one of the two cases singled out in RFRA. The exercise of religion in that case was Adele Sherbert’s religion-based refusal to work on Saturday. See id. at 403 (describing the relevant conduct as “appellant’s conscientious objection to Saturday work”).
A corporation can engage in this kind of “exercise of religion” if a corporation can refuse, for religious reasons, to do something otherwise required by law. And it plainly can. Suppose a federal law requiring fast-food restaurants located near interstate highways to be open seven days a week. Chick-fil-A’s religion-based refusal to operate on Sundays in violation of this law would surely be an “exercise of religion” akin to Ms. Sherbert’s refusal to work on Saturdays.
The profit-making character of the corporation does not change the analysis of whether the corporation can make a religion-based decision. Chick-fil-A is a profit-making business. Yet it foregoes the profits it would otherwise make through Sunday operation because its religion-based corporate policy controls the manner in which it seeks to make a profit. Similarly, Ms. Sherbert was working for money (and later seeking unemployment benefits). Yet her religious obligation not to work on Saturday conditioned the manner in which she could go about earning money.
The panel majority opinion simply does not address this line of argument. One way in which its failure to address RFRA independently may have contributed to this failure to analyze what counts as a protected “exercise of religion” emerges from a word search for that phrase. It does not appear until page 28, after the majority has already concluded its Free Exercise analysis. In the course of its Free Exercise analysis, the Third Circuit panel majority does not ask whether a corporation can engage in the “exercise of religion” (RFRA’s words), but rather whether corporations can “engage in religious exercise” [11] or whether corporations can “exercise religion” [15]. The wording shift is subtle and almost certainly unintentional, but it nevertheless tends to lead analysis in the wrong direction. For the panel majority’s rephrasing suggests asking whether a corporation can engage in religious exercises like prayer, worship, participation in sacraments, and so on. But that is not what the governing law requires.
Monday, July 29, 2013
This is a bracing essay by the skeptical philosopher John Gray about legal scholar Philip Bobbitt's new book on Machiavelli. Way back in the stone age, I studied Machiavelli and Guicciardini (whose immense Storia d'Italia is a relatively unknown masterpiece) in graduate school and wrote my master's thesis about contemporary misinterpretations of Machiavelli's writing (I called this "Machiavellianism," and I argued that the aristocrat Guicciardini had a much more acute understanding of Machiavelli than did most contemporary commenters). But Gray's piece actually says something larger about the comparative weakness of law as against politics. And what he says has direct application to the way in which it is fashionable to discuss many legal issues--from religious freedom to international human rights. Here is a fragment of the essay:
One of the peculiarities of political thought at the present time is that it is fundamentally hostile to politics. Bismarck may have opined that laws are like sausages – it’s best not to inquire too closely into how they are made – but for many, the law has an austere authority that stands far above any grubby political compromise. In the view of most liberal thinkers today, basic liberties and equalities should be embedded in law, interpreted by judges and enforced as a matter of principle. A world in which little or nothing of importance is left to the contingencies of politics is the implicit ideal of the age.
The trouble is that politics can’t be swept to one side in this way. The law these liberals venerate isn’t a free-standing institution towering majestically above the chaos of human conflict. Instead – and this is where the Florentine diplomat and historian Niccolò Machiavelli (1469-1527) comes in – modern law is an artefact of state power. Probably nothing is more important for the protection of freedom than the independence of the judiciary from the executive; but this independence (which can never be complete) is possible only when the state is strong and secure. Western governments blunder around the world gibbering about human rights; but there can be no rights without the rule of law and no rule of law in a fractured or failed state, which is the usual result of western sponsored regime change. In many cases geopolitical calculations may lie behind the decision to intervene; yet it is a fantasy about the nature of rights that is the public rationale, and there is every sign that our leaders take the fantasy for real . . . .
If Bobbitt misreads Machiavelli, it is because Machiavelli is as much of a heretic today as he ever was. Resistance to his thought comes now not from Christian divines but from liberal thinkers. According to the prevailing philosophy of liberal legalism, political conflict can be averted by a well-designed constitution and freedoms enshrined in a regime of rights. In reality, as Machiavelli well knew, constitutions and legal systems come and go. According to Bobbitt, “The lesson of Machiavelli’s advice to statesmen is: don’t kid yourself. What annoyed . . . Machiavelli was the willingness of his contemporaries to pretend that quite simple formulations were adequate to the task of governing in the common interest.” Plainly, the market state is a formula of precisely this kind.
The true lesson of Machiavelli is that the alternative to politics is not law but unending war. When they topple tyrants for the sake of faddish visions of rights, western governments enmesh themselves in intractable conflicts they do not understand and cannot hope to control. Yet if Machiavelli could return from the grave, he would hardly be annoyed or frustrated by such folly. Ever aware of the incurable human habit of mistaking fancy for reality, he would simply respond with a Florentine smile.
Saturday, July 27, 2013
Will Baude has a strong post discussing the takeaway from the opinion of the United States Court of Appeals for the Third Circuit yesterday upholding the denial of a preliminary injunction in a contraceptives mandate case. In Conestoga Wood Specialties Corporation v. Department of HHS, a for-profit corporation sued the federal government to stop enforcement of the contraceptives mandate against it. The court, in a divided opinion, held that for-profit corporations cannot "exercise" religion and that they therefore can have no constitutional free exercise or RFRA claims.
Will asks some good questions about the court's analysis. I think he is right that the court proves far too much. All of the arguments it makes against the free exercise rights of corporations would apply equally to non-profit corporations like churches. Though the majority recognizes this problem, it does not discuss sufficiently (or really, at all) what for it are the key distinctions--the distinction between "for profit" and "nonprofit," and the distinction between "religious" and "secular." There may well be strong arguments to exclude corporations that fall on one side of these distinctions from the category of those entities that can "exercise" religion. But they do not appear in the majority's opinion.
There is another odd portion of the majority's opinion that Will does not discuss. Will's post is largely focused on the Free Exercise Clause and the constitutional question. But there is a RFRA claim as well. As to that claim, the majority's argument was surprisingly short:
Next, we consider Conestoga‘s RFRA claim. Under the RFRA, ―[g]overnment shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability [unless the burden] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.‖ 42 U.S.C. §§ 2000bb-1(a)-(b). As with the inquiry under the Free Exercise Clause, our preliminary inquiry is whether a for-profit, secular corporation can assert a claim under the RFRA. Under the plain language of the statute, the RFRA only applies to a ―person‘s exercise of religion.‖ Id. at § 2000bb-1(a).
Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a "person" under the RFRA.
With respect, this is very strange. Normally, one does not simply assume that a term as used in the Constitution must mean exactly the same thing as a term used in a statute. That's not a rule of statutory interpretation I ever heard of. Normally, one interprets the statutory language independently, using the accepted tools of statutory interpretation. It is true that one should avoid construing a statute in such a way that it violates the Constitution, but that canon does not apply here. It is perfectly possible that there may be different, and distinct, linguistic usages in a statute and in other legal texts. As an example, the majority's own preferred approach to divining the meaning of "exercise" in the Free Exercise Clause is to engage in what it calls a "historical" analysis. But presumably to divine the meaning of the statutory language, one would begin with the "plain meaning" of the words in the statute. The court uses the words "plain meaning" in the first paragraph, but it does not discuss plain meaning. One might also, depending upon one's views, talk about or maybe just mention legislative intent. Perhaps the usage is the same in the RFRA as in the Free Exercise Clause; perhaps not. But simply to assume this about the meaning of the statute because one has decided on the constitutional question has got to be mistaken.
ADDENDUM: A recent prominent example of different constitutional and statutory meanings concerns the term "tax" as used in the Anti-Injunction Act and in Article I Section 8 of the Constitution. The Supreme Court has held that "tax" in the AIA is to be understood in its broadest possible sense, but a different, and narrower, meaning has been said to apply to the term as used in the Constitution (see, e.g., the Child Labor Tax Case). The same thing might be true of the term "exercise." See 42 USC s. 2000bb-2(4) (exercise of religion "includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief") (emphasis added).
Tuesday, July 23, 2013
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.
Friday, July 19, 2013
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.
wonderfully massive and variegated International Consortium for Law and Religion Studies conference in Virginia. The overall theme of the conference organized by the marvelous Cole Durham and Brett Scharffs was "Religion, Democracy, and Equality."
