OK, OK, he is my co-author (of What is Marriage? Man and Woman: A Defense) and my former research assistant---so maybe I'm biased. BUT, I think Ryan Anderson is quickly establishing himself as his generation's most impressive Catholic public intellectual. I give you as Exhibit A Ryan's banquet speech at the Alliance Defending Freedom summer academy (posted today by First Things): http://www.firstthings.com/onthesquare/2013/07/calling-and-witness-holiness-and-truth
Monday, July 15, 2013
The amazing Ryan Anderson
Relationship as the Antidote to Stereotype
In our recently-published empirical study of religious freedom cases brought in the federal courts, Michael Heise and I found that American Muslims have been at a distinct and substantial disadvantage in raising free exercise claims. Gregory C. Sisk & Michael Heise, Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts, 98 Iowa Law Review 231 (2012) (here). Holding other variables constant, the likelihood of success for non-Muslim claimants in religious free exercise claims was 38 percent, while the probability of success for Muslim claimants fell to 22 percent. In sum, Muslim claimants had only about half the chance to receive accommodation that was enjoyed by claimants from other religious communities.
Turning from statistical analysis to interpretive evaluation, we suggested that the most likely explanation for the Muslim disadvantage was the often subconscious perception by many of us that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. Sociologist Stanley Cohen originated the term “moral panic,” defined as when a “condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests [and] its nature is presented in a stylized and stereotypical fashion.” We fear that we have been experiencing such a "moral panic." Indeed, we argue that the persistent uneasiness of many Americans about Muslims poses a new threat to religious liberty.
The negative image of Islam and its followers in America, sadly accepted by a substantial segment of our society, bears little resemblance to reality. As reported by the Pew Research Center in 2007 (here):
A comprehensive nationwide survey of Muslim Americans finds them to be largely assimilated, happy with their lives, and moderate with respect to many of the issues that have divided Muslims and Westerners around the world. Muslim Americans are a highly diverse population, one largely comprised of immigrants. Nonetheless, they are decidedly American in their outlook, values, and attitudes. Overwhelmingly, they believe that hard work pays off in this society. This belief is reflected in Muslim American income and education levels, which generally mirror those of the general public.
A larger percentage of Muslims (71 percent in 2007, 74 percent in 2011) than the general American public (64 percent in 2007, 62 percent in 2011) has adopted a strong work ethic and believes people can move ahead through hard work. (Pew Survey 2007; Pew Survey 2011). Muslim American women are highly educated, second only to Jewish women in that regard, and Muslim Americans have the highest level of gender pay equity. Overall, more than three-quarters of Muslims in the United States report that they are happy or satisfied with their lives. A more recent poll found that, among all religious groups, Muslim Americans are the most optimistic about their future.
Nonetheless, negative stereotypes persist. Why? Poll results and statistics -- knowledge divorced from relationship -- are unlikely to bring us all the way home.
As psychology Professor Seymour Epstein explains, each of us “apprehends reality in two fundamentally different ways, one variously labeled intuitive, natural, non-verbal, narrative, and experiential, and the other analytical, deliberative, verbal, and rational.” Psychology Professor and Nobel laureate in economics Daniel Kahneman describes “System 1” as “operating automatically and quickly, with little or no effort and no sense of voluntary control,” while “System 2,” which is our “conscious reasoning self” gives “attention to the effortful mental activities that demand it.”
Despite being an integral and often beneficial side of our personality, Epstein warns that the experiential system is “[m]ore crudely differentiated” and lends itself to “stereotypical thinking.”
But while a tendency toward stereotypical thinking about our fellow human beings may be somewhat hard-wired into our brains, psychology Professor Albert Bandura emphasizes that “[t]he capability to reflect upon oneself and the adequacy of one’s thoughts and actions is [an] exclusively human attribute.” In rough terms, while our animal instincts may prompt us to be suspicious of others who are different than we are, our human capacity grants us the gift of reflection and reconstruction and empathy.
Epstein advises that a person may “improve [the experiential system] by providing it with corrective experiences.” A group of law and psychology scholars in a recent article with Professor Jerry Kang as lead author urges us to counter harmful subconscious prejudices by “engage[ing] in effortful, deliberative processing.” Professor Kang and his scholarly associates refer to this “potentially effective strategy” to reduce the impact of implicit biases as “expos[ing] ourselves to countertypical associations.”
In sum, we are talking about “relationship.” When we are making decisions about people, fundamental fairness and respect for human dignity demands that we make individual and rational judgments. And we are more likely to do so when we know people, when we expand our circle of friends and neighbors and associates and students.
As lawyers, law professors, and law students, our professional work is about relationships. I just returned weekend before last from an important conference on professional formation hosted by the Holloran Center at the University of St. Thomas School of Law. A key theme was that clients are not problems to be solved but people to be served. Moreover, as legal educators, we must remember that the most effective instruction is one built on relationships in a diverse classroom community.
In his first encyclical this past month, Pope Francis reminds us that relationship is at the heart of our Catholic faith. In the Old Testament, God reveals Himself to Abraham by calling him by name: “God is not the god of a particular place, or a deity linked to specific sacred time, but the God of a person, the God of Abraham, Isaac and Jacob, capable of interacting with man and establishing a covenant with him. Faith is our response to a word which engages us personally, to a ‘Thou’ who calls us by name.” In the New Testament, we are called to a relational faith through “the person of Christ himself, who can be seen and heard.”
These words of Pope Francis should resonate all of us who are saddened by societal divisions and the stain of harmful stereotypes: "Persons always live in relationship. We come from others, we belong to others, and our lives are enlarged by our encounter with others.”
My "Fortnight for Freedom" talk
Here's a short story about a talk I gave, at the local Cathedral, in connection with the Fortnight for Freedom. A taste:
“Religious freedom is a human right — not a concession — grounded in human dignity, fundamental and essential for human flourishing. Every person, because he or she is a person has the right to religious liberty.”
This was the message University of Notre Dame law professor Richard Garnett brought to an audience in St. Matthew Cathedral on the eve of July 4, the night before the official closing of the U.S. Bishops’ Fortnight for Freedom. Garnett is an expert on the U.S. Constitution and is a consultant to the United States Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty.
“Our founders put religious liberty at the heart, the core, not the periphery, of their bold new project,” he continued. “They knew that, unless our most sacred things are protected, all our other freedoms — press, speech, conscience, privacy — are vulnerable. Religious freedom was widely seen not as a gift, but, as it should be, as part of the very structure of a free society.”
Sunday, July 14, 2013
Another Observation about Hollingsworth
I have been reading again the two marriage decisions issued by the Supreme Court recently, i.e., United States v. Windsor and Hollingsworth v. Perry. Previously, I offered several remarks on Hollingsworth on this site, but now I see a reason to add another thought about the Proposition 8 case, its influence on Windsor, and what Justice Alito said in his dissenting opinion in Windsor.
In Windsor, Justice Alito notes at page 15, footnote 7 of his dissenting opinion that the Brief of the Constitutional and Civil Procedure Professors, amici curiae, asserted in their Hollingsworth brief that Judge Walker’s “factual findings are compelling and should be given significant weight.” This brief continued by stating that “Under any standard of review, this Court [the Supreme Court of the United States] should credit and adopt the trial court’s findings because they result from rigorous and exacting application of the Federal Rules of Evidence, and are supported by reliable research and by the unanimous consensus of mainstream social science experts.” [Italics added by RJA sj] Several of these claims by law professors cited by Justice Alito are untenable. Why do I make this observation?
First of all, one of Judge Walker’s findings (with references to the supportive testimony; in particular one deponent’s statement that the “Catholic Church views homosexuality as ‘sinful’”) was that: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” Fact Finding, N. 77, p. 101.
The more I consider what these colleagues in the teaching profession have indirectly said about religion (Catholicism, in particular) by urging adoption of Judge Walker’s findings and the shadow that their arguments about his findings cast, I appreciate all the more what Justice Alito said regarding these contentions: “Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.”
I will put aside the issue of sinfulness mentioned in Judge Walker’s findings since I do not think Federal judges or other civil officials should decide whether any act is sin or sinful. Making this determination falls outside of the civil official’s competence. Catholic teaching informs us that any sexual activity—be it hetero- or homosexual—outside of marriage that is the union of one man and one woman is also sinful. But whether this religious belief harms co-habiting male and female partnerships is a dubious claim to make. There are occasions where sin and wrongful doing under the law coincide. For example, lying is a sin. We had a discussion about this at the Mirror of Justice some time ago. But lying, e.g., perjury, is also an offense under the law. In such a case, a court dealing with lying is not looking at the act of lying as a sin but, rather, as an offense against the civil code or common law. While not having the authority to address the sin, the court has the jurisdiction to address the purported crime and civil wrong.
Consequently, judges do have the competence to decide if something is right or wrong, i.e., consistent or not, with human behavior that is a subject of the law. In this context, let me parse the rest of the Judge Walker’s finding, relevant to this posting, that “Religious beliefs that gay and lesbian relationships are… inferior to heterosexual relationships harms gays and lesbians.” The issue of considering inferiority may well fall within the competence of a court as the judge(s) may raise the question of equality, equal protection under the law, and due process when one status may be considered inferior to another. So the next issue to consider is this: how does this matter of “inferiority” harm homosexual couples? Should we consider whether there is a qualitative and objective distinction between the two? Making this consideration is essential to whether or not there really is harm that needs to be addressed by the law.
In order to assess the merits or lack thereof of the inferiority argument, it is essential to consider whether the heterosexual couple and the homosexual couple are different in any meaningful, substantive way. Why? Well, one indisputable fact that did not make it into the findings of fact of the District Court helps shed understanding on the nature of this distinction: the complementarity of the sexes which is manifested in their sexual activity. This is a relevant fact upon which Judge Walker did not comment or recognize in this finding, but there is an implicit assumption in his finding that hetero- and homosexual couples are the same in every respect. But they are not.
But then, one might next ask: why should complementarity matter? It matters because two persons of the opposite sex (and who are of physical, biological maturity) have the capacity or the potential for the capacity to do something which the same-sex couple cannot do. In this regard, the same-sex couple is, in fact, “inferior.” It does not mean that they are necessarily less human or less deserving of legal protection on matters where the fact of complementarity of the sexes is not relevant (e.g., can they be denied the right to register to vote? No.), but when it comes to the issue of sexual complementarity having a bearing on marriage, there is a difference which makes one couple “inferior to”, i.e., different from, the other. As I have argued at the Mirror of Justice and elsewhere before, the accuracy and the truth of this distinction can be demonstrated with the following hypothetical: planet A and planet B are respectively colonized by humans; opposite-sex couples are sent to planet A, and same-sex couples are sent to planet B. I shall assume that neither group has the means of assisted reproductive technologies. In one hundred years we return to both planets. Will both still be populated? The answer is clear: No, only planet A will be. Why? The answer remains in the fact of the distinction between the two kinds of couples. While both kinds may have love and commitment, only those sent to planet A will be able to sustain the human race due to the complementarity of the sexes.
The religious person relying on faith alone might not make this observation; but the religious person who pays attention to objective reason can, does, and must contend that this distinction bears a vital difference between the two kinds of couples. But so can any other person, lay or expert, who makes the distinction based on objective reason that is crucial to rigorous and exacting applications of collecting data and evidence reach the same conclusion about this important difference between same-sex and opposite-sex couples. To contend, as the law professors cited by Justice Alito, that Judge Walker’s finding results “from rigorous and exacting application of the Federal Rules of Evidence, and [is] supported by reliable research and by the unanimous consensus of mainstream social science experts” is suspect, to say the least. While I tend to shy away from language employed by Justice Alito, I do not shy away from the logic and truth that undergirds his point.
The criticism and condemnation of religious persons for asserting that there is a difference between opposite-sex and same-sex couples is wrong; objective reality, which is the subject of “rigorous and exacting” fact-finding, demonstrates without question that those who make this distinction are making a truthful statement that is not only relevant but also vital to the law. To say otherwise is the real harm.
RJA sj
Saturday, July 13, 2013
Reflections on a Challenging Time
Helen Alvaré from George Mason has an insightful piece over on Public Discourse discussing many of the major legal actions of the Supreme Court, Department of Health and Human Services, and Texas State Legislature during the past month. Placing them in a larger context, her reflections are well worth the read.
Friday, July 12, 2013
Capital Punishment, Same-Sex Marriage, and Abortion
The
title of my new book, Human Rights in the Constitutional Law of the United States, references the subject matter that has been my
principal scholarly obsession since the beginning of my academic career. In
the book--the introduction to which is available here for download--I elaborate three internationally recognized human rights, each of
which, as I explain, is entrenched in the constitutional law of the
United States: the right not to be subjected to “cruel and unusual”
punishment, the right to moral equality, and the right to religious and
moral freedom. I then pursue three inquiries that are of special concern to MOJ readers:
• Does punishing a criminal by killing him violate the right not to be subjected to “cruel and unusual” punishment?
•
Does excluding same-sex couples from civil marriage violate the right
to moral equality or the right to religious and moral freedom?
• Does criminalizing abortion violate the right to moral equality or the right to religious and moral freedom?
I
also pursue a fourth inquiry: In exercising judicial review of a
certain sort--judicial review to determine whether a law (or other
public policy) claimed to violate a constitutionally entrenched human
right does in fact violate the right--should the Supreme Court of the
United States inquire whether in its own judgment the law violates the
right? Or, instead, should the Court proceed deferentially, inquiring
only whether the lawmakers’ judgment that the law does not violate the
right is a reasonable one? In short, how large/small a role should the
Court play in protecting (enforcing) constitutionally entrenched human
rights?
I have long been engaged by, and have before written
about, questions such as those I address in this book: questions about
the implications of constitutionally entrenched human rights--and the
question about the proper role of the Supreme Court in adjudicating such
questions. (The title of my first book, published in 1982: The
Constitution, the Courts, and Human Rights.) Indeed, I have before
written about each of the three constitutional controversies at the
heart of this book: capital punishment, same-sex marriage, and
abortion. Because I was not satisfied with my earlier efforts, I decided to revisit
the controversies.
On my teaching partnership with Cornel West
Today National Review On-Line posted an interview with me about my new book, Conscience and Its Enemies. For anyone who might be interested, here is the link:
www.nationalreview.com/article/353233/what-conscience-really-means-interview
The NRO editors had to cut parts of some of my replies to their questions in order to keep the interview to a reasonable length. One of the truncated replies concerned my teaching partnership with Professor Cornel West. I'll reproduce the reply in full here:
I have taught undergraduate seminars (and will teach another one in 2015) with my dear friend and former Princeton colleague Cornel West, a man of the left (though definitely not a secularist) with whom I disagree on many issues. In our classroom work together, and in our many conservations, Cornel has been completely willing to engage on these issues, and examine his own philosophical assumptions, even as he invites me to examine mine. It’s a side of Cornel not seen by those who are familiar only with his fiery oratory at Occupy Wall Street rallies and the like. If conservatives had a window into our classroom, I know they would be pleased by what they would observe. There is no indoctrination—in either direction—no “political correctness,” no unquestioned or undefended assumptions, no rhetorical manipulation, no name-calling or other abuse. There is genuine intellectual engagement in a truth-seeking spirit of civility. The students actually learn something from the discussions—and so do the two professors.
Thursday, July 11, 2013
The Libertas Project at Villanova Law
As reported at this story in the National Law Journal and here at the Villanova web site, Villanova Law has received a generous grant from the Templeton Foundation to launch The Libertas Project on religious and economic freedom. Starting in 2014, the project will bring leading scholars, judges, and policy makers to Villanova through conferences, workshops, and sponsored research. The project will seek to bring together concerns about religious freedom and economic freedom in a common framework that situates both topics amid a larger conversation about freedom, law,
and virtue. Through the project, Villanova will aspire to broaden the academic and public appreciation for religious freedom as a human good, while also
bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society.
Wednesday, July 10, 2013
"My Mother's Adoption: A Tale of Two Texans"
Powerful testimony.
...
Merfish writes with pride about her mom’s choice to kill her brother or sister because he or she was a few years early for her parents’ taste. Today, I’m writing with pride about my mom’s choice to save my brother’s life and give him a loving, intact family that could provide him the life he deserved. Merfish’s mom had to endure the judgmental attitudes of the abortionist. My mom had to endure months of morning sickness and ten hours of labor and delivery. Then she endured the pain of letting another woman, a woman who was ready to be a mom, take her baby boy home.
...
Merfish’s mom married her dad shortly after her abortion. They finished college and went on to have better-timed children and, presumably, successful lives. My mom later met a dashing grad student at that commuter college. They married, graduated, had two daughters, successful careers, and are now approaching a secure retirement. Choosing life, no matter how inconvenient, doesn’t have to end anyone’s chance at the American Dream.
Merfish’s mom taught her that the right to kill an inconvenient child is sacred. Merfish ends her piece in The New York Times with a call for more such “bravery.” My mom taught me that every child, no matter the inconvenience, is sacred. She made a heroic sacrifice to give my brother the life he deserved; she offered her suffering and sorrow to protect an innocent child’s rights instead of her own. Memo to The New York Times: that’s bravery worth celebrating.
Tuesday, July 9, 2013
An Important Church Autonomy Ruling
This time from the European Court of Human Rights, whose decision in Sindicatul Pastorul cel Bun v. Romania appears to adopt a similar methodological approach to Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. See this post by my colleague Mark Movsesian for further details.
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