Caroline Mala Corbin has posted a new paper, Expanding the Bob Jones Compromise. Here's the abstract:
Sometimes the right to liberty and the right to equality point in the same direction. Sometimes the two rights conflict. Which constitutional value should prevail when the right to religious liberty clashes with the right to be free from discrimination on the basis of race and sex? More particularly, should faith-based organizations, in the name of religious liberty, be immune from anti-discrimination law?
Bob Jones University v. United States suggests a compromise: permit faith-based organizations to discriminate on the basis of race or sex if that discrimination is religiously required, but at the same time refuse to condone or support that discrimination by denying those religious organizations any financial aid. In fact, it is already federal policy to withhold government subsidies from religious organizations that discriminate on the basis of race, and the Bob Jones Court rejected a free exercise challenge to that policy. The same policy should apply with regard to discrimination on the basis of sex. Allowing religious groups to discriminate on the basis of sex but declining to provide grants, vouchers, or tax exempt status to those that do discriminate honors both our commitment to religious liberty and our commitment to equality.
In the paper itself, we learn that "the Roman Catholic Church, the Southern Baptist Convention, the Eastern Orthodox Church, the Church of Jesus Christ of Latter-Day Saints . . . Seventh Day Adventists, Jehovah's Witnesses, and Orthodox Judaism exclude women from the ministry and other leadership positions." (pp. 14-15) Such organizations "should not receive taxpayer money." (p. 15) Indeed, "providing taxpayer money not only helps invidious discrimination flourish, but it puts the state's stamp of approval on an organization's discriminatory practices." (p. 22)
I'm not exactly sure what "receive taxpayer money" means. Certainly taxpayers are free to give their money to whatever group they choose. Tax-exempt status may mean that the government is foregoing revenue that they would receive absent such status, but that's not the same thing as receiving "taxpayer money," as though the government is directly subsidizing a church. As Justice Powell noted in his concurrence in Bob Jones, the tax exemption is not a tool with which to "reinforce any perceived 'common community conscience,'" but rather is an "indispensable means of limiting the influence of government orthodoxy on important areas of community life." (461 U.S. at 609)
As for Prof. Corbin's factual assertion that tax-exempt status conveys "the state's stamp of approval," that becomes more likely as the state becomes more selective in granting the status. I have not seen survey data, but my guess is that few Americans believe that the federal government approves (or disapproves) of the Catholic Church's all-male priesthood. That's how it should be.
In any event, how does all this amount to the "compromise" advertised in the paper's title? Apparently because Corbin refrains from "suggesting that these organizations be outlawed," noting that "arguably there are benefits to organizational diversity." (p. 15) (emphasis added) Very generous.
Over at Christianity Today, Russell Moore reflects on the snarkiness of some of the Chuck Colson obituaries.
When you read those who smirk and dismiss the Chuck Colson conversion, the Chuck Colson life, don't get angry and don't be outraged. Read a subtext that belongs to all of us: the fear that the criminal conspiracy we've all been a part of will be exposed, and just can't be forgiven. Read the undercurrent of those who find it hard to believe that one can be not just pardoned, but "born again." That's indeed hard to believe. An empty grave in Jerusalem is all we have on which to base that claim, a claim that speaks louder than our own accusing hearts.
I have to believe that when Chuck Colson opened his eyes in the moments after death that he didn't hear anything about break-ins or dirty tricks or guilty consciences. I have to believe Mr. Colson heard a Galilean voice saying, "I was in prison and you visited me" (Matt. 25:36). I have to believe that he stood before his Creator with a new record, a new life transcript, one that belonged not to himself but to a Judean day-laborer who is now the ruler of the cosmos. And in that Lamb's Book of Life there are no eighteen minute gaps.
Folks can disagree about the tone or content of the bishops' statement on religious liberty. I was struck, though, by this component of the "partisan" charge (noted more broadly by Mike Moreland a few days ago) from the Commonweal editors:
Religious freedom “ought not to be a partisan issue,” the bishops declare. They are absolutely right. If defending religious freedom becomes a partisan issue or, worse, an electoral ploy, it will engender enormous cynicism in an electorate in which a significant majority of voters already think religion is too politicized. Unfortunately, the bishops’ statement and proposal for public action are likely to increase that possibility. This initiative is being launched during an election year in which one party has assumed the mantle of faith and charges the other with attacking religion. The bishops need to do much more to prevent their national campaign from becoming a not-very-covert rallying point for the Republican Party and its candidates. If that happens, it is the church and the cause of religious freedom that will suffer.
I'm pretty sure that the bishops would have preferred that 2012 not be a year that has seen the erosion of religious liberty on several distinct fronts. The fact that this is an election year is beside the point, and the fact that one party may have more aggressively claimed the mantle of faith (for good or for ill) does not change the facts on the ground regarding religious liberty. If the bishops take a partisan tone, that's fair game for criticism -- and I agree with the editors that the bishops' failure to flag the recent spate of anti-Sharia initiatives is a regrettable oversight -- but the fact that they saw fit to issue a statement in the same year as a presidential election is a strange objection to raise. Unless legislatures and government agencies are going to avoid actions that encroach on religious liberty in an election year, defenders of religious liberty can't take the year off. If there are specific assertions in the statement that can be construed as partisan, let's talk about them and not rely on vague references to timing as the source of a heightened -- perhaps insurmountable? -- standard for proving nonpartisanship.
I oppose the HHS contraceptive mandate, but I admit to being confused (and a little troubled) by the argument that, under Smith, legislative exceptions make it more likely that a statute is unconstitutional. I understand that there are exceptions built into the rule of Smith, though I don't know the case law well enough to have a good sense of how they play out in practice. I'm having a hard time seeing how the exceptions -- especially to the extent that those exceptions are triggered by the existence of exceptions in the legislation at issue -- could stretch to encompass the HHS mandate. Marc writes:
The HHS mandate contains many, many exceptions: exceptions for grandfathered organizations; hardship exceptions of various kinds (I believe, but am not certain); exceptions based on the number of employees the organization has; and perhaps others. There is a quite plausible claim to be made (it has been made already, several times, in pending litigation) that these exceptions can ground a claim that the government has violated the Constitution.
If the legislative exception itself calls into question the general applicability that is at the heart of the Smith requirements -- i.e., the exceptions suggest that certain categories of practices are being targeted for reasons unrelated to the objectives of the underlying rule -- I can see why Smith wouldn't apply. But if the exceptions are driven by the objectives of the underlying rule, why would that take us outside of Smith's scope? Exceptions based on the number of employees or on the fact that the organization serves members of the sponsoring religious group appear to be related to the underlying rule's objective. There is no suggestion that HHS is picking and choosing the practices and groups that it prefers through the exceptions to the mandate.
Alternatively, if the exceptions are taken to be evidence that the government interest at stake is not all that compelling since the government is willing to give ground on certain aspects of the legislation's enforcement, doesn't that simply take us back to the pre-Smith balancing approach, from which Smith was a dramatic departure?
More broadly, to the extent that the presence of exceptions is enough to call the Smith rule's applicability into question, isn't the easy legislative response to stop granting exceptions? Is that result good for anyone?
I know we have some Paul Ryan admirers on this blog, and far be it from me to discourage elected officials from wrestling with the implications that Catholic social teaching has for public policy, but I start to feel a little tense when such "wrestling" looks more like "confident proclamation devoid of nuance." Consider Ryan's explanation of his budget proposal:
Ryan said that the principle of subsidiarity — a notion, rooted in Catholic social teaching, that decisions are best made at most local level available — guided his thinking on budget planning.
“To me, the principle of subsidiarity, which is really federalism, meaning government closest to the people governs best, having a civil society … where we, through our civic organizations, through our churches, through our charities, through all of our different groups where we interact with people as a community, that’s how we advance the common good,” Ryan said.
Last week I subtracted points from a student's paper who equated subsidiarity with federalism. They may be consistent in their facilitation of similar values, but federalism is a structural feature of government that operates without (much) regard to function; subsidiarity is, at the core, driven by assessments of function. (I trust that Prof. Brennan, who has minced no words in criticizing me for too readily embracing a secularized vision of subsidiarity, is currently penning a very strongly worded letter to Rep. Ryan.) And then there's the preferential option for the poor:
The Wisconsin Republican said that he also drew on Catholic teachings regarding concern for the poor, and his interpretation of how that translated into government policy.
“[T]he preferential option for the poor, which is one of the primary tenets of Catholic social teaching, means don’t keep people poor, don’t make people dependent on government so that they stay stuck at their station in life, help people get out of poverty out onto life of independence,” said Ryan.
I agree that CST does not want us to "keep people poor," but it is a matter of some dispute whether any meaningful tax increases for the wealthy can be equated with such an outcome. I'm not suggesting that Ryan's budget is misguided -- indeed, there is much about it that I admire -- or that he is insincere in his application of CST. It's simply another example of CST defying easy categorization; I have more respect for folks who acknowledge that. (And that's probably why I'd be a disaster in politics, where nuance does not seem to go over well.)
Sam Levine and his colleagues at Touro Law School have put together an all-star lineup for the Religiously Affiliated Law Schools conference next month. You can check out the schedule here.
As the father of three daughters, our society's increasingly mainstream hook-up culture is a painful subject. (Last week at the gym I had the misfortune of watching a new gem from MTV, a show featuring the promiscuity of "Jersey Shore" played out in the lives of 15 year-olds. If I didn't need my shoes on the treadmill, I would have thrown them at the television.) Charles Camosy uses Easter as an occasion to reflect on where we are. An excerpt:
Much of Western culture has reacted to the sexual oppression of the past by celebrating human sexuality, and this was a necessary and welcome change. But when what we celebrate is mere sexual choice—without examining and critiquing the social structures which lie beneath—we ignore another kind of sexual oppression in which the vulnerable get deeply and seriously hurt. In particular because women are most often the victims of this consumerist-driven sexuality, it is noteworthy that more academics are not driving the resistance against the hook-up culture. This is particularly troublesome given that, in other contexts where vulnerable or minority populations are being hurt by physical and structural violence (especially when it is driven by consumerism), academics often stand up in large numbers to be counted as energetic opposition against concepts of “freedom” that are unaware of or unconcerned with social structures.
Whatever our politics (and whatever our gender), our culture’s sexual practices are desperately calling out for renewal–and as an Easter people all of us must do a better job answering that call.
Should folks who are committed to a robust conception of human dignity be troubled by yesterday's Supreme Court ruling in Florence? To the extent that strip searches are inherently degrading, should they require a reasonable suspicion of contraband, or is this a matter solely up to the judgment of law enforcement? As the Church teaches, "the political community pursues the common good when it seeks to create a human environment that offers citizens the possibility of truly exercising their human rights and of fulfilling completely their corresponding duties." (Compendium para. 389) It seems to me that a commitment to human dignity requires recognition of a right to be free of invasive and degrading searches, and we should be concerned that such a right can be overcome by any arrest, for any crime, under any circumstances. That said, I am not a criminal procedure expert, so I'll leave it to others to chime in on how this aligns with our jurisprudence in the area.
Bernard Harcourt comments on the ruling's underlying "police state logic":
Now, of course, Kennedy is right that . . . security risks exist. There are (extremely rare) cases of arrestees carrying contraband (drugs) on or in their bodies. It occurs in extremely few cases, but it does happen. One recent study of 75,000 new inmates over a five years period found 16 instances where a full body search revealed contraband. (As Breyer explains, “The record further showed that 13 of these 16 pieces of contraband would have been detected in a patdown or a search of shoes and outer-clothing. In the three instances in which contra¬band was found on the detainee’s body or in a body cavity, there was a drug or felony history that would have justified a strip search on individualized reasonable suspicion,” Breyer’s dissent at page 8. Truth is, we do not know if there are any such cases where there was no prior reasonable suspicion that the person was carrying contraband, but let’s put that aside).
I’m fully prepared to assume, with Kennedy, that there will be such cases. But the question is, do we then embrace a “police-state logic” and give the jailors the license to strip search everyone? Do we close off constitutionalism because of the very existence of a security risk, no matter how small? Or do we engage in some kind of political balancing of those security risks against other political values?
Notice that Kennedy’s police-state logic would allow for full cavity searches as well. Kennedy reports: “A person booked on a misdemeanor charge of disorderly conduct in Washington State managed to hide a lighter, tobacco, tattoo needles, and other prohibited items in his rectal cavity. San Francisco officials have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance, and shoplifting.”
Does Christianity get less sensitive treatment from the media than Islam does? Well, yes, but there's a good reason for that. According to the head of the BBC, in an interview a few weeks ago, other faiths have a "very close identity with ethnic minorities." Get Religion comments here.
