Following up on Howard's and others' posts on the Kim Davis matter: About 25 years ago, I remember being disappointed that some of then-Judge Clarence Thomas's critics insisted they were nervous about -- or, in some cases, were simply snarky about -- statements and writings of his regarding the importance and relevance of the natural law. It seemed to me at the time (and still does) that there was nothing particularly remarkable or weird about these views, considered in the broad context of the American legal and political traditions. But, again, for some of Thomas's critics -- including, interestingly, some of the same people who had, a few years before, professed concern about Judge Bork's statements against the relevance of the natural law -- the fact that Judge Thomas (like Dr. King, etc., etc.) believed that the natural law is real and relevant was thought to be worrisome.
It is similarly disappointing, to me, that some of those (not here!) criticizing Kim Davis's refusal to issue marriage licenses are doing so on the ground that she is not only required by her job description but also -- again, to hear some argue it -- by foundational principles of political morality to comply with every duty imposed on her by the positive law, regardless of any conscientious or religious objections to compliance she might have. This seems too strong. I think we can all think of fairly recent instances in which officials have declined to comply with what seemed to be the positive law duties attached to their offices and avoided the kind of condemnation that Davis has been attracting.
This piece, by Robert Barnes, provides a helpful overview of at least one aspect of the debate ("Legally, 'God's Authority' Is a Tough Issue.") I spoke with Mr. Barnes -- who is, I think, an excellent reporter on legal and constitutional matters -- for a little while yesterday. At one point in the piece, I'm cited in the following way:
. . . Such compromises can be difficult to find. Appeals to “natural law,” and morality, as Davis and Bunning discussed Thursday, are difficult for a judge to assess, said Richard Garnett, a Notre Dame law professor who specializes in religion and the law. . . .
The citation is accurate. It seems to me that, generally speaking, an official who objects on moral grounds to carrying out a positive-law duty should recuse herself or resign (and not refuse to comply with a court order or injunction). That said, my observation about the difficulty any secular/civil judge faces in dealing directly with a claimant's invocation of natural law came in the context of a broader (and fun) conversation in which, among other things, I said that I see nothing spooky or innovative, in the American tradition -- nothing requiring scare-quotes -- about invoking higher-law standards in the course of morally evaluating the positive law. As I discussed with Mr. Barnes, it seems to me that a large part of the human-rights enterprise has involved precisely (even if not always overtly) this kind of evaluation. I believe that the natural law is real and morally binding and that it is entirely appropriate for citizens to do what we reasonably can to make it the case that positive law and policy are consonant with (which, of course, does not mean they should fully capture) the natural law. In other words, to criticize Davis simply for invoking a higher-law standard is, I think, misguided, even if, in the end, we think that Judge Bunning's rulings are correct.
Prof. Mark Rienzi, who is also quoted, put things pretty well:
It is better to base legal arguments on constitutional protections and statutes such as the Religious Freedom Restoration Act, said Mark Rienzi, a Catholic University law professor who is fighting the contraceptive mandate but is not involved in the Davis case.
Judges may have their own ideas of morality, he said, “but I don’t think any of them have the authority to enforce their own moral preferences.”
Monday, August 31, 2015
Back in March of 2014, I blogged about the Establishment Clause challenge brought by the Freedom From Religion Foundation against "Big Mountain Jesus." Here's a picture I took, during my own trip to enjoy the great Montana snow:
Just as a reminder: The statue was put up in 1953, by the Knights of Columbus as a memorial for members of the 10th Mountain Division. As this news story reports:
The monument, which also included a plaque dedicated to the WWII soldiers, was built and maintained by private efforts. Every 10 years the permit for the monument was renewed with the Flathead National Forest.
The FFRF lost in the District Court. Judge Dana Christensen wrote:
"To some, Big Mountain Jesus is offensive and to others it represents only a religious symbol," Chistensen wrote. "But the court suspects that most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."
He said that to many the statue "serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots, and 210 cm. skis."
Well, the Ninth Circuit's ruling is just in, and Big Mountain Jesus is safe again. (The opinion is here: Download SANFRAN-#160648-v1-Ninth_Circuit_Affirmance.) Among the several factors that prompted the Court to conclude that the "endorsement test" did not require the statue's removal was this: "the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures[.]"
Judge Pregerson dissented.
Sunday, August 30, 2015
There's been a fair bit of coverage of the controversy caused when Vox.com commissioned, and then declined to publish, this essay by Torbjorn Tannsjo. Apparently, the editors went weak in the knees over the possibility that some readers of the essay might "misinterpret it as implying opposition to abortion rights and birth control, which . . . is a real concern.” Ah, open-minded inquiry. (Brian Leiter has more on the episode here.)
Tannsjo was asked, initially, to present (and in the essay he defends) the “the repugnant conclusion,” a "belief that asserts our moral duty to increase the population size because, according to the argument, more humans means more happiness." I have to admit -- and I'm not inclined to think that moral questions reduce to hedonic-utility calculations -- that I don't understand why this conclusion is or should be "repugnant", even to those who reject it. That is, why should the conclusion be repugnant (rather than the argument be "unsound," if it is?
See (just by way of example) this piece in The Guardian. I understand entirely the impulse, in the academy and elsewhere, to "engage" in and with the PRC. Indeed, how could a Christian not, given the very rapid growth in the number of Christians in that country. And yet . . . "engagement" must not be an excuse -- for researchers, universities, business executives, investors, or politicians -- for turning a blind eye to, or making excuses for, the rampant human-rights violations and the oppression of Christians and other religious minorities:
Chinese security forces have launched a roundup of church activists who opposed a Communist party campaign to remove crosses.
“At least nine people I know have been taken away by the police and that figure is still rising,” a church leader in the eastern province of Zhejiang – the operation’s focus – told the Guardian on Thursday afternoon.
“We think it is a campaign targeting church leaders across the province. It can only be a co-ordinated action initiated by the provincial government.”
Among those understood to have been detained is Zhang Kai, a prominent Beijing human rights lawyer who had been offering legal support to a number of churches in the region.
At Public Discourse, Matthew Franck has posted a critique of Rawlsian "public reason" (as constructed and deployed by some) and notes:
Rawlsian public reason is more likely to cause conflict than to reduce it. It’s the Chris Christie of public discourse, telling religious citizens to “sit down and shut up.” Rawls admits that “liberty of conscience” is one of the “constitutional essentials” in any liberal political order. This is good to hear. But he also says “separation of church and state . . . protects religion from the state and the state from religion; it protects citizens from their churches and citizens from one another.” This is “separation” with a decidedly secularist bias. It fails to give liberty of conscience the freedom to be active in the world as a witness to faith in word as well as deed. . . .
As Justice Robert Jackson said over seventy years ago, “freedom to differ is not limited to things that do not matter much.” To close down debate with a “that’s strictly religious” objection is the opposite of liberalism, and there is no justification for it.
Very well said. For another treatment of the impulse to manage public discourse and soothe "divisiveness" by excluding or marginalizing religion, see my "Religion, Division, and the First Amendment" (here):
Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good.
This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument.
The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is religiously based social conflict - or, as the Court put it in Lemon, political . . . divisiveness on religious lines? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the principle it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally?
Working through these questions, I am mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism (is) the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.
This should be great:
First Things and Austin Graduate School of Theology invite you to
a First Things lecture presented by Robert L. Wilken.
Christianity & Religious Freedom
It is widely assumed that the modern understanding of religious freedom was a work of the Enlightenment. In truth, the central ideas go back to the early church fathers and the Scriptures. During the Reformation these ancient beliefs were given new life by Protestant and Catholic authors. Liberty of conscience was born, not of indifference, nor of skepticism, but of faith. Today, as religious freedom is being challenged in the U.S., and some are asking “why tolerate religion?,” Christians need to stand up to defend the religious roots of religious liberty.
Christianity & Religious Freedom, presented by Robert L. Wilken
a First Things Lecture
Hosted by
WHEN:
7:00pm
Monday, September 14, 2015
WHERE:
University Avenue Church of Christ (map & directions)
1903 University Avenue
Austin, Texas 78705
For more information about Austin Graduate School of Theology, please visit:
http://info.austingrad.edu/christianstudies
Robert Louis Wilken is William R. Kenan Professor Emeritus of the History of Christianity at the University of Virginia. His books include The Spirit of Early Christian Thought and The Christians as the Romans Saw Them.
Friday, August 28, 2015
Not that it's surprising, but Stanley Carlson-Thies is exactly right about (among other things) why American United (et al.) is exactly wrong when it comes to the right of religious organizations to hire-for-mission, even when they are cooperating with the government to provide social-welfare and other services. A bit:
. . . The basic American practice is to protect the religious identity and character of religious organizations by permitting them to consider religion when they hire and fire employees, just as the law does not prohibit Senate offices from assessing the political convictions of job applicants or PETA from rejecting cat-haters who apply for jobs.
Enabling religious organizations to continue to hire based on religion when they agree to partner with the government avoids making eligibility for the government funds conditional on abandonment by the organizations of a right (religious hiring) specifically protected in law. And protecting that right when government funds are involved has a big benefit for government and society: it keeps those many faith-based based organizations from having to reject government funds and partnerships with government in order to maintain their religious identity. Because faith-based organizations play such critical roles in serving persons, families, and communities, protecting religious hiring is an essential way to promote the common good.
Protecting religious hiring is not simply a matter of respecting legal freedoms and constitutional principles but is thus a vital means to promoting social justice in our society. . . .
Thursday, August 27, 2015
The good folks at the Becket Fund have helpfully collected all of the amicus briefs that were filed in support of the Little Sisters of the Poor's petition for certiorari. Some (including this one) take time to develop arguments under the Free Exercise Clause and the Establishment Clause (that is, they add to the familiar RFRA arguments). Happy reading!
