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.”
Wednesday, June 19, 2013
Recalling Alexis de Tocqueville's praise of American preference for building voluntary associations to work together rather than relying on government, Niall Ferguson writes in the Wall Street Journal that modern American has become "Planet Government." The suffocating effect is not only felt in the economic sphere but in the decline of intermediary associations on matters of religion and morality, charity and community. It is no accident that nations (and states within the United States) with the largest governmental sectors also become nations (and states) with the lowest levels of charitable giving and of religious faith.
The column ends with a prescient quote from de Tocqueville -- and one can readily substitute "spirit of faith" or "spirit of community" for "spirit of free enterprise here:
Tocqueville also foresaw exactly how this regulatory state would
suffocate the spirit of free enterprise: "It rarely forces one to act,
but it constantly opposes itself to one's acting; it does not destroy,
it prevents things from being born; it does not tyrannize, it hinders,
compromises, enervates, extinguishes, dazes, and finally reduces [the]
nation to being nothing more than a herd of timid and industrious
animals of which the government is the shepherd."
Monday, June 10, 2013
Catholic
teaching affirms the moral weight of privacy and confidentiality, as a matter of
respect for human dignity. As the
Catholic Catechism says, even beyond the special protection of professional secrets,
“private information prejudicial to another is not to be divulged without a
grave and proportionate reason.”
Having now
been identified in The Guardian as
the “whistleblower” on the National Security Agency’s (NSA) surveying data from
internet traffic, 29-year-old defense contractor employee Edward
Snowden says that he was willing to sacrifice his high-paying job and a
comfortable life in Hawaii “because I can’t in good conscience allow the US
government to destroy privacy, internet freedom and basic liberties for people
around the world with this massive surveillance machine they’re secretly
building.”
Others have
responded that this is much ado about nothing, with little danger to privacy. As one commentator assures us, “Calm down,
folks. Big Brother is not watching you.”
Still, as
more comes to light about the secret surveillance programs, such assurances are
increasingly less than reassuring.
At first we were told that only metadata was being collected about international telephone calls -- lists of phone numbers called from another phone number, etc. Probable cause would have to be shown to
obtain a court warrant before anyone could actually listen in on a telephone
conversation -- although apparently only if national security personnel concluded that someone inside the United States was on one end of the call.
But then we
learned that internet databases are being mined by the NSA, producing a massive central collection of data that may include all Americans, as well as foreign
individuals. While the only legitimate targets
for data searches may be foreign individuals and foreign internet communications, the large national
security fishing net sweeps up Americans as well. We are promised that domestic fish will be tossed back into the virtual sea.
In an editorial more than a decade ago, criticizing the Bush Administration’s similar “Total Information Awareness” program, Ben
Stone (the head of the Iowa Civil Liberties Union) and I argued:
When law enforcement has a particular reason to suspect that
an individual is violating the law, the government always has had the option of
obtaining a search warrant or issuing a subpoena to secure information crucial
to an investigation of an actual crime, including obtaining consumer
information from credit-card issuers about recent charges on cards, from
internet service providers about activities on computers, etc.
But the government may gather that information only when it
has a basis to believe that an identified person is engaged in criminal
activity. To allow the government to
assemble a detailed dossier on everyone in advance is to treat every American
as a criminal suspect.
Nor am I
much comforted by the supposed reservation of this database to targeting
foreign individuals for national security reasons. We are told the government may trove through its
comprehensive data collection for information on an individual only if it believes
that person is foreign. The data sifting
methods supposedly “are designed to produce at least 51 percent confidence in a target’s ‘foreignness.’" By that measure, a rather large and
non-trivial percentage of the specific individualized data profiling ends up
being assembled (mistakenly we are told) on Americans.
Continue reading
Monday, April 29, 2013
The mainstream media is now devoting some attention to the trial of late-term abortionist Kermit Gosnell, who is charged with homicide for cutting the spinal columns of moving and squealing babies born alive during abortion procedures. And, at long last, questions are now being raised about whether such practices along with infanticide attitudes are more prevalent in the abortion industry.
In recent weeks, we've learned about:
* Florida legislative testimony by a Planned Parenthood lobbyist in Florida responding to a question about a baby struggling for life after a botched abortion by saying that the decision should be left to the woman and her physician (here). (Planned Parenthood of Florida later walked back that answer, but remains opposed to legislation directing medical efforts to save the life of a baby born alive during an abortion procedure.)
* An undercover video inside a New York abortion clinic in which a staff member explained that if an aborted baby were still moving after a late-term abortion, the clinic would place "it" in a jar of "solution" and "the solution will make it stop" (here). (The full video shows that an abortion counselor in the clinic said that in the unlikely event the baby was breathing after the procedure, the physician would attempt to save it. The clinic has not explained why a long-time staff member had a very different answer -- and a very disturbing attitude. Nor has the clinc explained why the life of a viable unborn baby should turn on whether it was killed before, during, or after a late-term abortion.)
* A Washington, D.C. abortionist who was caught on tape saying that, in the unlikely event that a baby was born alive, "we would do nothing to help it" (here). (This abortionist also pulled back a little on his candid taped remarks to assure reporters that he would call 9-1-1 but take no extraordinary efforts to save the baby. He also provided no explanation for why death of the same baby outside the womb should be treated any differently than terminating it first inside the womb.)
A broader group of individuals is now asking questions about the culture of infanticide perpetuated by the abortion industry, including the efforts by Planned Parenthood and its allies, supported by its presidential patron Barack Obama, to vociferously oppose legislation prohibiting late-term abortion, to require medical efforts to save the lives of babies born alive in abortion clinics, or to ensure that full information about the development of the fetus is provided to women coming to abortion clinics.
Melinda Henneberg, writing in the Washington Post, is not opposed to all abortions and would not fall comfortably into the pro-life camp. But she too is asking tough questions about the abortion culture and wants to at least draw the line at infanticide. Here are a few excerpts (the full article is here):
While in campaign mode, Obama purported to respect diverse views on the abortion issue. But I detected no such sensitivity in his Friday remarks at Planned Parenthood,
where he spoke of “those who want to turn back the clock to policies
more suited to the 1950s than the 21st century. And they’ve been
involved in an orchestrated and historic effort to roll back basic
rights when it comes to women’s health.”
Abortion, he means, though that word wasn’t in his talk.
Though I do not support a “personhood” amendment, neither am I okay
with the Orwellian dodge that it’s not a baby unless and until we say
it’s a baby. And I continue to hope that someday, Americans will look
back on the twin moral blind spots of infanticide and capital punishment
– yes, even for terrorists – and wonder what we were thinking.
But part of the answer, surely, is that we’ve tried not to do a lot
of thinking when doing so would prove uncomfortable. Part of the answer,
I believe, is right there in what that Bronx clinic worker said to the
undercover activist: “I don’t know why you want to know all this; just
do it.”
Wednesday, April 17, 2013
Overthe last month, I (here), Rick Garnett (here), and others on Mirror of Justice have protested the news media's virtual black-out in covering the trial of abortionist Kermit Gosnell, accused of murdering newborn babies who survived late-term abortions, as well as causing the death of women in his fraudulent medical practice.
Shamed into introspection, more or less candidly acknowledged, the news media have begun covering the horrific trial in Philadelphia. Now that attention finally is being paid, what will come of it?
Journalist Carl Cannon writes on realclearpolitics.com about "reproductive rights" as one of journalism's most "sacred cows," and then offers these thoughts on attention being drawn to the reality of abortion as a "procedure":
Gosnell’s actions pull back the curtain on this procedure and allow
Americans to contemplate a disquieting prospect: that abortion itself is
an inherently violent act, the grisly details of which remain hidden
even from the patients in the operating room -- and that if those
specifics were truly understood, public support for it would wane.
Let us so hope! To read more from Mr. Cannon, see
here.
Thursday, March 21, 2013
On the National Review blog, Mark Steyn in "The Unmourned" comments on the major news media blackout of ongoing developments in the trial of Philadelphia abortionist Kermit Gosnell and what that says about our society and especially about the unwillingness of the mainstream media to highlight any story that contravenes the pro-choice narrative.
Gosnell is one of those doctors willing to perform late-term abortions. And he also acted to guarantee the result would be a dead baby, even if he had to take additional steps toward that end. Viable babies aborted alive were regularly and callously terminated in Gosnell's "House of Horrors."
Thank goodness the Philadelphia district attorney finally acted to stop this ongoing atrocity. And thank goodness for Pennsylvania's law prohibiting abortions after the 24th week. Remember this episode the next time someone hyberbolically suggests that pro-life advocacy for changes in the law have produced nothing but "failure." If for nothing more than bringing an end to Gosnell's destruction of the innocents, a man who has aborted hundreds of unborn children and regularly practiced infanticide, Pennsylvania's law will have saved more lives than could any proposed national ban on assault weapons, however meritorious the latter proposal might be.
During the trial, Gosnell's medical assistant testified about the practice of killing at least ten babies after they survived the late-term abortion and how Gosnell joked about the gruesome practice.
Medical assistant Adrienne Moton admitted Tuesday that she had cut
the necks of at least 10 babies after they were delivered, as Gosnell
had instructed her. Gosnell and another employee regularly “snipped” the
spines “to ensure fetal demise,” she said.
Moton sobbed as she recalled taking a cellphone photograph of one
baby because he was bigger than any she had seen aborted before. She
measured the fetus at nearly 30 weeks, and thought he could have
survived, given his size and pinkish color. Gosnell later joked that the
baby was so big he could have walked to the bus stop, she said.
Needless to say, if this were not an abortionist and if this hadn't occurred in an abortion clinic, this trial would be the lead story on every news channel and at the top of the fold in every newspaper. Instead of the agonizingly long soap opera trial of Jodi Arias in Arizona for killing her boyfriend, the slaughter of dozens of babies ought to be the story of the day -- no, the story of the year. Attention must be paid!
Medical assistant Adrienne Moton admitted Tuesday that she had cut
the necks of at least 10 babies after they were delivered, as Gosnell
had instructed her. Gosnell and another employee regularly “snipped” the
spines “to ensure fetal demise,” she said.
Moton sobbed as she recalled taking a cellphone photograph of one
baby because he was bigger than any she had seen aborted before. She
measured the fetus at nearly 30 weeks, and thought he could have
survived, given his size and pinkish color. Gosnell later joked that the
baby was so big he could have walked to the bus stop, she said.