Corey Brettschneider has an interesting book out, called When the State Speaks, What Should it Say? How Democracies Can Protect Expression and Promote Equality. As I hinted at in this paper, there is a lot to welcome and embrace in Brettschneider's book, but there are also a lot of places where I'd have to disagree. In any event, Paul Horwitz has a characteristically thoughtful and charitable post up, at Concurring Opinions, in which he poses a laundry list of questions about the book. Definitely check out his post, which gives voice to (and better expresses than I would have) many of my own reservations.
Here is just one (of 13!) of Paul's detailed questions:
1) Much of Brettschneider’s book argues that the state has an obligation to publicize “the justification for those rights protected by law–namely, their basis in the values of free and equal citizenship.” Elsewhere, he refers to “reasons” for rights, which seems to indicate there might be several, but the overall emphasis seems to be on the idea that there is a particular correct view of the justifications underlying rights. Is it sensible or advisable to argue on the basis that there is a single best justification for rights, and that promoting that particular justification–and arguing against viewpoints that contradict that single justification–is an obligation of the state and of individual citizens and state officials? Most people, I should think, believe (correctly) that rights are subject to a variety of overlapping justifications, including religious ones. Why are we better off starting with a monist approach to rights justifications rather than with a pluralist view that rights are subject to a variety of potential justifications, and that much of the consensus around the importance of rights stems precisely from incompletely theorized agreements about rights from a variety of perspectives? If the justifications for rights are importantly plural, would that not affect the kinds of policy recommendations Brettschneider makes, and perhaps chasten the nuanced but strong recommendations that he offers for a more active, non-viewpoint-neutral state? In particular, why should citizens who, in Brettschneider’s view, have an obligation to engage in a “persuasive response” to speech that undermines free and equal citizenship be obliged to offer what he thinks is the “correct” view of free and equal citizenship and the way in which it supports rights? Wouldn’t it be better if they advanced a variety of views about why rights are right, so to speak, and why hateful and discriminatory views are wrong?
Here is an additional wrinkle: If Michael Perry and others are right (and I think they are, about this) then the best (and maybe the only) "reason for rights" -- that is, the only reason why it is true that the claims rights-talk makes about persons are plausible -- are "religious" . . . then the modern liberal state -- if it is supposed to publicize the "reasons for rights" -- is kind of in a bind.
Paul's follow-up post -- which focuses on the implications of Brettschneider's arguments for religion and religious liberty, is also a must-read, and is available here.
Here is a review, by Patrick and John Garry, of Bruce Ledewitz's Church, State, and the Crisis in American Secularism. The abstract:
Reading a book with which one agrees on the basic assumptions and goals can be a reaffirming and educational experience. However, reading a book with which one disagrees about some of its basic assumptions and goals can be a stimulating and even enlightening experience, particularly if the book presents a logical argument, a compelling and laudable vision, and an openness to opposing views. For this reviewer, Professor Bruce Ledewitz has written just such a book.
Nice.
Thursday, April 11, 2013
Profl Steve Smith (San Diego) has a clear and compelling essay up, at PENNumbra, on the HHS mandate and religious freedom, called "The Contraception Mandate and Religious Freedom." As he says (correctly, I think): "There are hard cases, and then there are easy cases. The Department of Health and Human Services’ (HHS) contraception mandate (the Mandate) gives rise to both." As he points out:
Many people who argue that the mandate does not violate RFRA can be better understood as contending, wittingly or unwittingly, that religion should not receive special, legal protection. And one reason why the contraception mandate controversy seems so important, even to religious believers (like myself) whose faith does not proscribe the use of contraceptives, is that the controversy is a contest in miniature over the fate and future of religious freedom in America.
Peter Berger has a nice post, here, commenting on the tendency of lawyers and bureaucrats to "think in highly abstract categories," the misguided expansion and application of "nondiscrimination" rules to student groups, and flypaper reports. A bit:
I have previously written about a militant secularism having become a noisy presence in America. I have called it (only half tongue-in-cheek) Kemalist—after Kemal Ataturk’s view of religion as a backward superstition to keep out of public space. It is the ideology of a quite small group that would not get anywhere through the democratic process and can only work through the courts, the least democratic branch of government. I can’t see Justice Ginsburg as a secularist ideologue. More likely, she reflects the views of church/state relations that have come to be taken for granted in the liberal subculture.
The legal mind, and the bureaucratic mind which is its lowbrow offspring, likes to squeeze the immense vitality of human life into abstract categories. Once these categories have been established, they must be imposed on everyone. I recall an episode I came across during my stint in the US Army. I knew a company clerk in Fort Benning, Georgia, where I spent most of my time in the military. He was enormously bored on his job. This was just before the two revolutions which transformed the American South: desegregation and air-conditioning (making the region more humane, more tolerable in the summer, and because of these two developments more dynamic economically). My acquaintance spent his days sitting at his desk, with little to do, sweating and swatting away the flies. He acquired a flypaper, which did indeed attract and kill a good many flies. He counted the number of flies caught on the flypaper and began to send weekly reports with this information to base headquarters. After three weeks of this exercise every unit in Fort Benning received a memorandum from headquarters, demanding to know why no flypaper reports had been submitted.
Heh.
Over at The Volokh Conspiracy, Eugene Volokh has the story about the Seventh Circuit's recent and fascinating decision about the alleged defamation involved in calling someone a "fake nun." Here's a bit from the (I think correct, for reasons I wrote about here) decision:
A secular court may not take sides on issues of religious doctrine. The district judge in this case has ruled that a federal jury shall decide whether Patricia Fuller is a member of a Roman Catholic religious order, though if the jury decides that she is it will be rejecting the contrary ruling of the religious body (the Holy See) authorized by the Church to decide such matters.
A secular court must be allowed to decide, however, whether a party is correct in arguing that there is an authoritative church ruling on an issue, a ruling that removes the issue from the jurisdiction of that court.... But once the court has satisfied itself that the authorized religious body has resolved the religious issue, the court may not question the resolution....
I know I should not be surprised, but I am, but the near-silence in major-media outlets about the Kermit Gosnell trial. The unwillingess to report on this story -- an unwillingness that, it is most reasonable to conclude, reflects the reporters' decision that it would be unhelpful to the cause of expanding abortion rights -- is, like the facts of the case, disgusting. A bit, from the International Business Times:
Horrific testimony in the trial over the last couple of weeks has revealed tales of the abortionist and his workers at Gosnell's Women's Medical Society clinic allegedly snipping fetuses' spines with scissors to "ensure fetal demise," jars of terminated fetuses' feet that Gosnell allegedly kept at the clinic, and a baby "screeching ... like a little alien" during a so-called live-birth abortion procedure allegedly performed at the clinic.
"Screeching like a little alien." Lord have mercy.
NOTE: Kirsten Powers' USA Today column is a welcome exception:
Let me state the obvious. This should be front page news. When Rush Limbaugh attacked Sandra Fluke, there was non-stop media hysteria. The venerable NBC Nightly News' Brian Williams intoned, "A firestorm of outrage from women after a crude tirade from Rush Limbaugh," as he teased a segment on the brouhaha. Yet, accusations of babies having their heads severed — a major human rights story if there ever was one — doesn't make the cut.
You don't have to oppose abortion rights to find late-term abortion abhorrent or to find the Gosnell trial eminently newsworthy. This is not about being "pro-choice" or "pro-life." It's about basic human rights.
The deafening silence of too much of the media, once a force for justice in America, is a disgrace.
Tuesday, April 9, 2013
As one friend put it, Gonzaga (a Catholic university) -- citing a "nondiscrimination policy" -- has
refused to recognize a Catholic group (the Knights of Columbus) because the group is Catholic. I hope the Gonzaga administrators (a) read my
paper, "Religious Freedom and the Nondiscrimination Norm"; (b) reverse this blockheaded decision; and (c) apologize for the farce that was the No. 1 seed for the University's men's basketball team.
