Sunday, April 28, 2013
"Nature loves to hide": More on the natural-law debate among Hart et al.
Rhode Island, marriage, and religious liberty: Some questions for Michael Perry
As MOJ readers know, a group of law professors (including Tom Berg and me) have been urging legislators proposing or considering laws that change the legal definition of "marriage" so as to include same-sex couples to take care to accommodate religious freedom in the process. (Go here to see some of the letters.) As we see it, this accommodation should involve more than assurances that clergy will not be required by law to officiate at same-sex couples' wedding ceremonies; it should include, for example, assurances that religious institutions and organizations that oppose the proposed change will not be penalized (e.g., through loss of access to contracting or public forums, or through loss of otherwise available tax treatment) and that such institutions and organizations would not be required to, say, rent out a generally available banquet hall to a same-sex couple celebrating their wedding. And so on.
To be sure, in a jurisdiction that includes same-sex unions in the category of marriage, there will be limits on the extent to which religious objections to that inclusion can and should be accommodated. But, the view expressed in these letters has been that the accommodations should be generous. I know that Michael and some other scholars who support the proposed changes to the legal definition of marriage are also committed to religious-liberty protections. (See, for example, Marc Stern's recent piece in USA Today.) How far, though, can or should such protections extend?
Saturday, April 27, 2013
The Republican Party and Same-Sex Marriage
As MOJ readers know, the Republican Party has stood proudly in opposition to same-sex marriage--more precisely, in opposition to admitting same-sex couples to civil marriage. So this development, reported in today's NYT, is quite interesting:
When the Rhode Island State Senate tallied up the votes against a same-sex marriage bill passed there on Wednesday, something was missing: Republicans.
All five of the chamber’s Republican lawmakers had voted for the bill, stunning opponents and sending the measure to the governor’s desk and almost-certain victory next week.
The vote reflected not only the rapidly shifting tides of public opinion on same-sex marriage, but also the influence of a new Republican advocacy group called the American Unity Fund, which spent weeks helping the state’s gay rights organization cultivate Republican senators.
Now the group is preparing a major push in Washington and in state capitals intended to reshape the Republican Party, by building support for same-sex marriage and bolstering its acceptance among candidates and party activists around the country.
Founded and financed by some of the country’s leading Republican fund-raisers and strategists, the fund expects to raise up to $7 million this year, officials said. The fund’s organizers include Paul E. Singer and Clifford S. Asness, libertarian-leaning New York investors; David Herro, a prominent Chicago money manager; and Seth Klarman, a billionaire Boston philanthropist and hedge fund manager.
“The concept of gay unions fits very well within our framework of individual liberty and our belief that strong families make for a stronger society,” Mr. Singer said in an e-mail. “The institution of marriage is in very bad shape in this country, yet gay and lesbian couples want very much to be a part of it, to live as committed husbands and wives with their children in traditional family units. This should be what we want as conservatives, for people to cherish and respect this model and to want it for themselves.”
The fund is one of several advocacy organizations backed by wealthy Republicans and business leaders to shift their party’s stance in recent months on issues like immigration and same-sex marriage. And the new effort traces a rift between Republican elites and grass-roots voters over a handful of hot-button social issues that one group views as handcuffing the party and the other sees as essential to its identity.
You can read the rest here. Of course, and as the article reports, this development is not without its critics, of whom there are many--including, no doubt, some of you.
Friday, April 26, 2013
Gone With the Wind
In David O. Selznick’s classic film about the American Civil War, one of the principal characters, Scarlett O’Hara, engages the Tarleton brothers with the following dialogue:
Scarlett: Fiddle-dee-dee! War, war, war; this war talk’s spoiling all the fun at every party this spring. I get so bored I could scream. Besides... there isn’t going to be any war.
Brent Tarleton: Not going to be any war?
Stuart Tarleton: Why, honey, of course there’s gonna be a war.
Scarlett: If either of you boys says “war” just once again, I’ll go in the house and slam the door.
Brent Tarleton: But Scarlett, honey...
Stuart Tarleton: Don’t you want us to have a war?
Of course there was a war, and it was, like most wars devastating and took tragic tolls on human life even though many Americans characterized by the Tarleton brothers may have initially welcomed the conflict.
Rick has just brought to our attention another report about another grave conflict in the United States by focusing on the American President’s address before Planned Parenthood in which Mr. Obama defended once again what now are called “rights”—the right to take an innocent human life. The President employed rhetoric, “an assault on women’s rights,” to critique those organizations and states who prepare and execute policies designed to regulate abortion. [President’s entire address is HERE]
Real wars involving real assaults against innocent civilians do bring casualties to the conflict. What the President failed to do in his speech before the members of the Planned Parenthood organization was to identify the real victim of abortion politics and the ensuing conflicts emanating from these politics, the over fifty million young Americans whose lives have been snuffed out by the very “right” he champions.
If he were really interested in discussing and debating the real casualties of the conflicts over abortion with the alleged right he defends so freely and enthusiastically, he should have mentioned the deaths of our young brothers and sisters who have been the real casualties of the abortion wars. But instead, the President defended women’s questionable Constitutional rights, but he did not mention that there are other ways of protecting their authentic rights with moral legitimacy—that there are other ways of avoiding assaults on the authentic rights of women. Rather, he allowed the sacred memory of the victims of abortion to be forgotten. Sadly, he chose not to speak about them or the rights which objective reason grants to them. Why? Well, after all, they, too, like the subjects in Selznick’s film are gone with the wind.
RJA sj
Fighting for abortion rights "right there . . . every step of the way."
The Star-Tribune reports:
President Barack Obama vowed Friday to join Planned Parenthood in fighting against what he said were efforts across the country to turn women's health back to the 1950s.
Obama's comments were the first by a sitting president before the abortion-rights group. He lauded its nearly 100 years of service to women, providing cancer screenings, contraceptives and other health services. . . .
He encouraged those gathered to continue fighting for abortion rights. "You've also got a president who is going to be right there with you, fighting every step of the way," Obama said.
The President, it is often pointed out, taught constitutional law. And so one has to assume that he knows that it's a bit of a stretch to suggest that there is afoot an "orchestrated and historic effort" to return birth-control and abortion-related policies "back" to the 1950s.
He does not need to be re-elected; would it be so hard for him to say -- how refreshing it would be for a politicians to say! -- "look, before the Roe decision, questions about whether and how abortion should be regulated were decided through politics; Roe and Casey, on the other hand, constitutionalized the issue -- remember, I taught constitutional law -- so that many regulations of abortion that would enjoy political support in some states are nonetheless off the table. In my view, that's a good thing, because a woman has a fundamental right to abortion, and fundamental rights should be removed from politics. But, some people disagree with me. Some think abortion should be more closely regulated, because they think the unborn child is a human person who is entitled to the law's protection. And, some think that the law should generally allow, and even subsidize, abortions, but not because the Supreme Court says so. I think I'm right, and these other people are wrong."
UPDATE: Here's a good post by Michael Sean Winters, addressing the same speech. Among other things, he says:
In the days after Benedict’s resignation, I got a call from a producer at a television talk show. She wanted to know if the cardinals might elect a new pope who would “take a more liberal position on issues like abortion.” I replied that the Church already has the liberal position on abortion: We stand up for the person who has no voice.
Garvey on "Endorsements and Academic Freedom"
In the name of toleration, I shall not tolerate YOU
Micah Schwartzman and Rich Schragger have a new paper (here) arguing against the freedom of the Church. They are especially unhappy about my own unvarnished defense of the Church's understanding of her divine right to freedom, and this leads them, ironically, to some impressive intolerance. Check it out! An insightful reader of the Schwarztman-Schragger paper sent me the following pertinent observation:
"One not only can, but the Catholic Church always has, tolerated those who do not believe in God’s whole truth. It is the liberal fundamentalist who cannot tolerate those who disagree with him. The fatuity of liberal fundamentalism is that it consists, often enough, in saying 'tolerate the intolerable or else, in the name of toleration, I shall not tolerate you.' Liberal fundamentalists add hypocrisy to error."
"Protecting Same-Sex Marriage and Religious Liberty"
Thursday, April 25, 2013
It's a Miracle!
.....well, not officially, yet, but, still........

Berger on American Civil Religion and the Boston Marathon Bombings
Peter Berger has a very smart column describing both the shortcomings and the advantages of American civil religion, as expressed and manifested in the rituals and ceremonies after the Boston Marathon bombing. A bit:
Soon after the bombings a makeshift memorial was spontaneously put up. A Globe article described it as “an eclectic collection of crosses, candles, teddy bears, medals, running shoes, and hundreds of other personalized items that reflect a common sorrow.” I don’t know when or where this practice originated, but it has occurred on other occasions of shared grief, for example following the death of Princess Diana. There were a few overtly religious messages inserted into the display, but the memorial as a whole had a clearly ritual, quasi-sacral character. People were coming and going, stood quietly in an attitude of prayer, wrote messages. A six-year old girl laboriously wrote a message saying “We love you so much!”. That was the major theme—expressions of affection for the victims. Then there were affirmations of resolve against violence, and expressions of the intent to run again in next year’s Marathon. Sacral ritual or not, no denominationally specific religion was visible here . . . .
The opening address at the Cathedral service was delivered by the Reverend Liz Walker, a Presbyterian minister. I was struck by the following passage: “How can God allow bad things to happen? Where was God when evil slithered in and planted the horror that exploded our innocence?” She said that she had no answer, and added, “But this is what I know: God is here, in the midst of this sacred gathering and beyond.”
I would not be misunderstood: I have no problem whatever for a minister not knowing “the answer” to the age-old question of theodicy. After all, I co-authored a book with the title In Praise of Doubt—by definition, I think, faith implies an absence of certainty—I don’t have to believe what I know. But that is not the point here. The point is this: The faith that Walker represents does have an answer, centered on the redemptive process inaugurated by the Incarnation and Resurrection of Jesus Christ, culminating on that Day of Judgment when all evil will finally be punished. But what is more: She could not (whether in tones of certainty or not) explicate this answer in the context of this service. Once again, I would not be misunderstood: I have no criticism of Walker’s reticence about the Christian faith she is supposed to represent. It would have been inappropriate here for her to come out with overtly Christian (let alone with Protestant or, if such there are, Presbyterian) references. But it is useful to reflect about the relation between any specific faith and the civil religion affirmed in this service . . . .
Grace Davie, a British sociologist, has written about the way in which established churches, in moments of collective grief, become the official mourners of the nation, even though only a minority of citizens worship in their services. The Church of England played this role at the funeral of Princess Diana, as did the Lutheran Church of Sweden (it has recently been disestablished) when the cruise ship “Estonia” sank in the Baltic Sea and a large number of Swedish tourists perished. The United States of course has no state church, but all the denominations together serve to legitimate the civil religion that can be embraced by all citizens.
This is a very distinctive American version of the separation of church and state, a quite strict legal separation, yet with diverse religious groups noisily present in public life. I think that, by and large, this has been a very successful arrangement. It presupposes that a religious group, when it enters public space, must translate its commentaries into terms that can be understood and debated by all citizens, most of whom will not be members of the particular group. Put differently, if one wants to persuade fellow-citizens in public space, one must employ a secular discourse. That discourse does have a moral foundation, the value system of the “American Creed”. Adherents of this or that specific faith may find these values more vague, even superficial, than the ones derived directly from faith, and they themselves may understand their allegiance to the Creed in terms specific to their faith. Thus the secular discourse of the public space coexists with the plurality of specific (if you will, “sectarian”) religious discourses.
I wonder about Berger's point about translation, which reminds me a little bit of Rawls's proviso. It may be more accurate to say that the specific religious discourses not only coexist with the civil religion, but themselves also somehow constitute it. That could be compatible with believing that the whole of civil religion is greater (and, of course, also less) than the sum of its discrete sectarian parts. But it would also be compatible with rejecting the metaphor of translation. Because, as Berger himself suggests, there are deep features of the specific traditions that do not translate (as in, for example, his remarks about theodicy) but may nevertheless in some way constitute part of the civil religion amalgam.
UPDATE: Here's an interesting comment on Berger and my reaction by Andy Koppelman.