A few days ago, in this post, I commented on Jack Balkin's recent speech, "Two Ideas for Access to Knowledge– The Infrastructure of Free Expression and Margins of Appreciation," and asked:
What if we substituted "religious freedom" for "free expression"? Does religious freedom require an infrastructure? If so, "[w]hat is in that infrastructure"?
There certainly is [such an infrastructure]. Freedoms like speech, press, and religion require more than mere absence of government censorship or prohibition to thrive; they also require institutions, practices and technological structures that foster and promote these freedoms. . . .
So what are the infrastructures of religious freedom? They include a wide range of private institutions-- churches, educational institutions, and charities. They also include many of the same structures and technologies that undergird freedom of speech, because religions are usually perpetuated through communication and education, just as cultures and ideologies are.
Religious freedom faces a special problem, however, because the U.S. Constitution limits the forms of infrastructure that the government can provide. The Constitution forbids federal and state governments from making laws concerning establishments of religion or that establish religion. Hence some obvious methods for creating an infrastructure of religious freedom are not available to governments that would be available to promoting freedom of speech more generally. . . .
Therefore, government can play somewhat less of a role in providing the infrastructure of religious freedom than it can in the case of free expression. Much of the slack will have to be made up for by private action, including private charity. With respect to the latter, however, government can play and has traditionally played an important role. Governments have allowed deductions for contributions to religious organizations and religious charities, and they have traditionally allowed churches and other religious charitable organizations exemption from property taxes as part of a general exemption for charitable and educational organizations. . . .
So far, I think I'm on board. There's more . . .
It standing governmental tax policies that treat religious organizations the same way they do other charitable and educational institutions.
Thus, although the Establishment Clause prevents the government from singling out religion for special benefits to create an infrastructure of religious freedom, it does not prohibit the government from creating infrastructural elements that benefit both religious and nonreligious expression alike.
I don't agree here, I think. Sometimes, the government may single out religion for special treatment -- i.e., because it is religion -- without "establishing" religion or violating the freedom of religious conscience. I am intrigued by, and attracted to, Balkin's "infrastructure" suggestions, but am not so sure that the Constitution limits government to building up that infrastructure accidentally, i.e., in ways that assimilate entirely religious freedom to free expression.
Pro-lifers are often caricatured as stupid creationists who just want to put women back in their place. Science and free inquiry are supposed to help them get over their "love affair with the fetus." But science hasn't cooperated. Ultrasound has exposed the life in the womb to those of us who didn't want to see what abortion kills. The fetus is squirming, and so are we. . . .
Critics complain that these bills seek to "bias," "coerce," and "guilt-trip" women. Come on. Women aren't too weak to face the truth. If you don't want to look at the video, you don't have to. But you should look at it, and so should the guy who got you pregnant, because the decision you're about to make is as grave as it gets. . . .
To pro-lifers, ultrasound is a test of pro-choice sincerity. "The same people who scream that women must always be told 'all their options,' including abortion, balk at allowing women to see whom it is whose life they are about to take," says Mary Spaulding Balch, NRLC's state legislative director. "They are petrified that women will change their minds after seeing their babies."
Maybe. But pro-lifers seem equally petrified that women won't change their minds. They rigged Mississippi's ultrasound law with a clause that would ban nearly all abortions if Roe is overturned. Now the Supreme Court has echoed that equivocation, ruling that one way to "inform" women of the evil of partial-birth abortion is to criminalize it. But the clash between ultrasound and the partial-birth ban is ultimately a choice between information and prohibition. To trust the ultrasound, you have to trust the woman.
Jack Balkin has posted a speech, delivered last week at the Yale's Second Access to Knowledge Conference (A2K2). The speech is called "Two Ideas for Access to Knowledge– The Infrastructure of Free Expression and Margins of Appreciation." Here is a bit:
Freedom of speech . . . depends on an infrastructure of free expression.
What is in that infrastructure? It includes government policies that promote the creation and delivery of information and knowledge. It concerns government policies that promote transparency and sharing of government created knowledge and data. It involves government and private sector investments in information provision and technology, including telephones, telegraphs, libraries, and Internet access. It includes policies like subsidies for postal delivery, education, and even the building of schools.
Read the whole thing. And, consider this: What if we substituted "religious freedom" for "free expression"? Does religious freedom require an infrastructure? If so, "[w]hat is in that infrastructure"? A fascinating question, I think.
Prof. Bainbridge comments here on a recent New York Times story about "pay to stay" jail upgrades being offered in California. Here's a bit from the story:
Anyone convicted of a crime knows a debt to society often must be paid in jail. But a slice of Californians willing to supplement that debt with cash (no personal checks, please) are finding that the time can be almost bearable.
For offenders whose crimes are usually relatively minor (carjackers should not bother) and whose bank accounts remain lofty, a dozen or so city jails across the state offer pay-to-stay upgrades. Theirs are a clean, quiet, if not exactly recherché alternative to the standard county jails, where the walls are bars, the fellow inmates are hardened and privileges are few. . . .
“It seems to be to be a little unfair,” said Mike Jackson, the training manager of the National Sheriff’s Association. “Two people come in, have the same offense, and the guy who has money gets to pay to stay and the other doesn’t. The system is supposed to be equitable.”
But cities argue that the paying inmates generate cash, often hundreds of thousands of dollars a year — enabling them to better afford their other taxpayer-financed operations — and are generally easy to deal with. . . .
What should we think about these "upgrades"? Certainly, one could hardly blame one convicted of a "relatively minor" crime for wanting to take advantage of this option. And, these upgrades might well provide a useful source of revenue. I wonder, though: Why stop at $82.00 per day? I would think that corrections agencies could fill their "upgrade" cells while charging substantially more. What if it turned out that many of those convicted of "relatively minor" offenses were willing to pay, say, $1000 per day -- or $10,000 per day -- not to avoid the loss of physical freedom associated with punishment, but to avoid the non-trivial risks of being harmed by other inmates? What would this willingness tell us about the extent to which we are failing in (what I take to be) our obligation to protect those we incarcerate?
I assume we don't want to say that these risks are "part of" the punishment that is justly imposed upon those convicted of crimes. So, if someone buys their way out of those risks, it is not -- is it? -- that they are buying their way out of duly imposed "punishment." But, once we acknowledge that there are non-essential, unpleasant incidents of punishment that we *are* willing to allow people to pay to avoid, then how do we justify imposing those incidents on those who cannot (or simply do not) pay to avoid them?
Charles Colson -- an (obviously) prominent Evangelical and, among other things, the inspiration for the Prison Fellowship -- released this statement, after several critics of the Court's recent partial-birth abortion ban attributed the Catholic Justices votes to uphold the ban to, well, their Catholicism. Here's a bit:
If you uphold a law approved by both parties in Congress and supported by most Americans, you are imposing your morality. But if you vote against the ban, you have nobly kept your religious views from interfering with your job. The ugly implication here is obvious: that it is not possible for faithful Catholic judges to carry out their responsibility to interpret and uphold the law. . . .
Protestants have a special duty to condemn anti-Catholic bigotry. Shamefully, at one time many Protestants accepted the vile teachings of Paul Blanchard, author of American Freedom and Catholic Power.They supported the anti-Catholic agenda of the group for which he was general counsel: Americans United for Separation of Church and State. Our Catholic brethren should not have to wait to hear our voices forcefully raised against the bigotry now directed against them.
I've put up on SSRN a version of the paper I presented at Villanova last fall (and which is now out in the Villanova Law Review) at the (wonderful) Scarpa Conference. The paper is called "Church, State, and the Practice of Love." Here's the abstract:
In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a “community of love.” In this letter, he explores the “organized practice” love by and through the Church, and the relationship between this practice, on the one hand, and the Church's “commitment to the just ordering of the State and society,” on the other. “God is love,” he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.
The specific goal for this paper is to draw from Deus caritas est some insight into what is a fundamental and – at present – the most pressing challenge in church-state law, namely, the preservation of the Church's moral and legal right to govern herself in accord with her own norms and in response to her own calling. It asks, what does the new Pope's work and thinking, about the future and present state of the Church and her organized practice of love, suggest about the appropriate content and vulnerable state of the rights and independence of religious groups – and of the freedom of the Church?
I appreciate very much Eduardo's recent post -- following up on our earlier not-quite-serious exchange -- about Catholic Justices in death-penalty cases. I am open to his argument that "general immorality of the death penalty imposes some obligations on someone in a position of authority with the discretion to act accordingly." That said, I remain leery of suggestions -- and I am not saying Eduardo is suggesting -- that (a) because the death penalty is immoral, it follows that (b) in order to judge morally, a Catholic appellate judge needs to sustain (all) legal claims brought by inmates on death row. This leeriness is not, I think, inconsistent with my view that, in order to legislate morally, a Catholic legislator must resist expanding, and must try to reasonable regulate, the Court-created abortion right.
The Boston Globe editorializes today about new studies on lethal-injection procedures. Here's a bit:
The debate over the death penalty in America should not hinge on whether the final agonies caused by any particular execution method are unconstitutionally painful. There are many other reasons why the death penalty should be abolished: It does not deter crime; it is applied unevenly across jurisdictions and demographic groups; it is irrevocable, and the dozen-odd death row inmates exonerated by DNA evidence underscore the danger of executing the innocent.
