Michael Perry linked here to John Gehring's recent post at Commonweal, "False Choices & Religious Liberty." Michael says the piece is "terrific" and "balanced." I'm afraid I cannot agree, notwithstanding my appreciation for Mr. Gehring's past work with the USCCB.
Now, I tend to prefer center-right policies on most issues, and Mr. Gehring works for a progressive public-policy agency, and so it's not remarkable that he and I evaluate differently some of the current policy debates in which the right to religious-freedom is implicated. (Certainly, we both agree that there is a place for -- as his agency's title puts it -- "Faith in Public Life.") Still, my disappointment with the piece is not, I think, a result of this difference. In my view, the piece to which Michael linked does not accurately describe -- indeed, it tendentiously describes -- those debates. As I see it, Mr. Gehring labels certain very real choices as "false" as a kind of short-hand way of contending that one choice rather than another should be made.
For starters, after saying that the debate over religious liberty is "unhinged" -- though his criticism is clearly directed only at the USCCB's "side" of that debate -- he writes:
At the same time, the perversion of religious liberty into a bludgeon against women’s health, workers’ rights, and LGBT equality has caused some progressives to forget that religious freedom is a fundamentally liberal value. Finding a better approach that rescues religious liberty from the culture wars is challenging, essential work.
It's hard to see this sentence as an invitation to dialogue, balance, or re-hinging. This sentence simply repeats activists' talking points -- it is, in fact, not the case that, generally speaking (there are always exceptions), religious liberty has been "perver[ted]" into a "bludgeon" for any such purpose. It is, instead, being employed, defensively, against activists and powerful interests who are invoking "women's health, workers' rights, and LGBT equality" in order to marginalize, and often demonize, traditional religious believers and to interfere with the religious missions of religious institutions. It is all well and good to bemoan the "culture wars" -- I regret them, too, and wish they would cease -- but, despite what some commentators say, the fact is that these "wars" are being waged more by Apple and Planned Parenthood than by the USCCB.
Next, Mr. Gehring's piece's claim that the "choice" between a meaningful right to religious freedom and equality, health care, etc., relies heavily on an implicit assumption that religious institutions -- like Catholic schools and hospitals -- are simply wrong in their religious commitments. So, he lists among the perversions of religious freedom those schools that have fired teachers who have entered into legal same-sex marriages, but doesn't seem to acknowledge these schools' argument that, as Catholic schools, they have as part of their mission forming students in the Church's moral anthropology and understanding of marriage and that -- no doubt with great regret -- they don't have many options in these situations.
Then, Mr. Gehring pivots and observes that "progressives also need a better approach that fosters dialogue and common ground instead of division." And, indeed they do. I've been a part of a number of legislative and other efforts -- in partnership with scholars who identify as progressives -- to find such common ground, but I'm afraid it's been very challenging. The reality is that even reasonable accommodations, let alone genuine appreciation for what my friend John Inazu calls "confident pluralism," doesn't hold much appeal for progressive activists and politicians at the moment. For many, it's easier, it seems, to call people "bigots" or to insist that religious-freedom must yield to the demands of the current understanding of the antidiscrimination norm. (More on this point, from me, in this paper.)
Unfortunately, it is quickly back to unhelpful and incomplete accounts of the issues at stake. Particularly unfortunate is his embrace of the partisan and inaccurate descriptions of the various state-level RFRA proposals that have become so controversial. He repeats the false claim that these laws would allow public-accommodations discrimination against gays and lesbians and so are like odious Jim Crow laws. (For a more accurate account of the Indiana proposal, in particular, see this . . . by me.) He concludes with this:
It’s wrong to pit religion against equality for all Americans. False choices box us into suffocating corners. Saving religious liberty from the quicksand of reckless rhetoric and political posturing won’t be easy. Progressives and conservatives squaring off in public debates have a choice. We can continue to exchange dueling press releases and self-righteous tweets—or sit down, humble ourselves, and search for common ground. “Come now, let us reason together, says the Lord,” the prophet Isaiah tells us. The comfortable and convenient path is well worn. Taking a harder road is worth the struggle if it leads to principled conversations and respect for the complexity of conscience.
There are some good ideas here but, again: The fact is that religious-freedom claimants are seeking accommodation, not a complete win. Respecting the "complexity of conscience" doesn't mean fining bakers and photographers, or pulling religious colleges' accreditation, or denying federal funds and contracts to religious social-service agencies that adhere to orthodox Christian teachings on sexuality and family, or requiring Catholic hospitals to provide abortions, or mandating that religious universities change their student-life and housing policies to match the current Administration's views on gender. Lord knows I'm sick of smug, snarky, and self-righteous tweets. But, to "humble" oneself means to not dismiss efforts to resist religious-freedom-burdening mandates and penalties as "perversions" and "bludgeons."
For my own part, I'm entirely open to working and talking with Mr. Gehring, or anyone else, about the "search for common ground." But the search won't get far if one characterizes one's interlocutors' positions and aims in the language of "dueling press releases."
Tuesday, June 21, 2016
Commonweal has just published a terrific article titled False Choices & Religious Liberty: Is There a Better Way Forward? Terrific in part because balanced. It begins with this:
The U.S. Conference of Catholic Bishops launches its annual Fortnight for Freedom campaign this week. A recent video from the conference illustrates how unhinged the debates over religious liberty have become. Pairing images of Islamic State militants ready to behead Christian prisoners with ominous warnings of the Obama administration’s harassment of religious ministries epitomizes how the hierarchy risks making itself its own worst enemy on the issue. (For more, see the recent Commonweal editorial, “Lights, Camera, Contraception?”) Even many faithful Catholics who should be most sympathetic to the church’s arguments have grown weary of the divisiveness and worry that the all-consuming quality of the religious-liberty battle now seems to define American Catholicism. At the same time, the perversion of religious liberty into a bludgeon against women’s health, workers’ rights, and LGBT equality has caused some progressives to forget that religious freedom is a fundamentally liberal value. Finding a better approach that rescues religious liberty from the culture wars is challenging, essential work.
Read the rest, here.
I look forward with some trepidation but with greater hope to reading Patrick's Catholic case against McLaw. Truth can be uncomfortable, but I must seek it out, like it or not. And because I happen to agree with much of what Justice Scalia has said about the law and judging, I am sure to be challenged by Patrick's paper.
One thought prompted by reading the abstract: Is there some version of Justice Scalia's comparison of hamburger making and judging that might be true when we focus on who is making which hamburgers and why? Suppose federal courts were like your local McDonald's. Would there be a Catholic way of judging analogous to a Catholic way of cooking hamburgers?
Hopefully this comes as a surprise to nobody, but the hamburger maker at your local McDonald's doesn't exist. That's because no hamburgers are made there. The chef cooks/heats up frozen hamburger patties processed at a hamburger plant. Is there a Catholic way of doing that? I doubt it, at least in any way that matters to how the hamburger tastes.
And if not, then maybe there is no Catholic way of deciding questions of federal law, at least insofar as judges themselves don't make lawburgers, but just prepare and serve up what was made at the national law plant.
I realize this is an implausible way, for many, of understanding the relationship between the judicial power and federal law. But I do know of at least one Supreme Court Justice who avowed a claim of this sort. Here's Chief Justice John Marshall in Osborn v. Bank of the United States:
Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.
To push our comparison (perhaps past the breaking point). Suppose the judge is the hamburger "maker" at your local McDonald's. His skill is never to be exercised for the purpose of making the best hamburger as he conceives it, but for the purpose of making the best hamburger as the McDonald's corporation (or whatever the controlling entity that decides the ideal hamburger) conceives it. Something may be lost by the subordination of his idea of the best hamburger to the corporation's. But if he's doing his job and the hamburger plant has done its job, then that hamburger should taste the same in San Francisco as in South Bend (assuming that's one of the qualities of the McDonald's hamburger dictated by corporate).
It might not be the best burger in town, but you know what you are getting. And that's not so unattractive, after all, when it comes to federal courts, at least if you subscribe to the idea "The Federal Courts as a Franchise."
Monday, June 20, 2016
Here , below, is the abstract of a paper I recently posted on SSRN: "A Catholic Way to Cook a Hamburger: The Catholic Case Against McLaw." It owes much to my fellow contributors to MOJ over these many years, but none of them is responsible for its content, of course. It also owes a great deal to the late Justice Antonin Scalia, whom I would like to thank across the chasm for all that he did to make us think harder about law, especially by inviting respectful disagreement.
Is there a "Catholic way" to do law? Catholics aiming to be respectable in the eyes of those who defend the U.S. Constitution as "the supreme Law of the Land" are at pains to convince us that the answer is no. This article argues that the answer is yes, and it does so in conversation was someone, Justice Antonin Scalia, who was certain that the answer was no. It does so, more specifically, in a discussion centered around Justice Scalia's infamous claim, made during a visit to Villanova University School of Law, that just as there is no "Catholic way to cook a hamburger," there is no "Catholic way" to judge.
This article, written as an invited contribution to a volume celebrating the 60th anniversary of the Villanova Law Review, celebrates, in turn, the ten years of the annual John F. Scarpa Conference on Law, Politics, and Culture, at Villanova. Its carefully circumscribed account of and argument for a Catholic way to do law is developed through conversation with some of the dozens of jurists, jurisprudes, philosophers, theologians, and political scientists who have spoken or written under the aegis of the Scarpa Conference; they include Martha Nussbaum, Geoff Stone, Henry Paul Monaghan, Richard Garnett, Paul Kahn, Jesse Choper, Kristin Hickman, John Finnis, Kent Greenawalt, Jane Schacter, Joseph Vining, Judge John T. Noonan, Jr., James Boyd White, Lee Bollinger, Jeremy Waldon, Rick Hills, Bill Eskridge, John Ferejohn, Gillian Metzger, John Manning, Avery Cardinal Dulles, and William Cardinal Levada, to name but a few.
To put the article's thesis epigrammatically, McWorld (to borrow Benjamin Barber's term) begets McLaw, but legal method that is isomorphic with the method of human understanding, which is the essence of Catholic legal method, generates not McLaw but true law, that is, progressively and cumulatively better ordinances of reason for the true common good. As Justice Souter wrote for an 8-1 Court in United States v. Mead (2001), from which Justice Scalia dissented, "Justice Scalia's first priority over the years has been to limit and simplify." But, as Joseph Vining, whose work figures centrally in my defense of a Catholic legal method, has both observed and contended, "law leaves nothing out," "not person, nor present, nor freedom, nor will, nor madness, nor the individual, nor the delight of a child, nor the eyes of a fellow human being, nor our sense of the ultimate, in its effort to make sense of our experience and make statements that are consistent and understandable in light of it all."
