PrawfsBlawg

Communion and Consistency?

I post the following in the interest of stimulating thoughtful conversation on religion and politics, one of our specialties here. It turns out the Catholic Church has been urging Rep. Kennedy to avoid participating in communion based on his support for abortion rights. The story has been percolating intensely the last couple weeks but stems from a letter sent to Kennedy from a bishop based in RI back in 2007.

 In response to this article, someone writes: 

Now I'm not a Catholic, but this is despicable. The Church has never told supporters of the death penalty or the criminal wars not to receive communion. It has never denied communion to anyone who covered up the sexual abuse scandal. It has never linked communion to its own teachings on rich people and camels and eyes of needles. Hell, it has even gone out of its way to praise Pius XII and has a current pope who was a member of Hitler Youth. What more is there to say?I suspect there is more to say than this provocative (incendiary?) comment, but I don't think I'm in a position informed enough to respond and would like to hear more about how these choices are made about which issues place politicians beyond communion, and which don't. For what it's worth, I don't doubt that other religions and religious organizations are regularly guilty of selective emphasis (aka hypocrisy), so blogging about this topic shouldn't suggest anything about my own inchoate views or that I think Catholics are occupying the field here. So, any thoughts in defense of the Bishop's choice or is this rank wrongness? Do people think (strictly from a normative/moral perspective, not legal) that isolating one group of persons is ok b/c the Church should be able to "regulate one step at a time"?

Catholic League v. San Francisco

When the Thomas More Law Center sued the City of San Francisco for condemning a Catholic Church policy on adoption, I opined that "the case seems pretty unlikely to get off the ground."  I was right and wrong, mostly wrong.  The plaintiffs claim was dismissed at the 12(b)(6) stage and that dismissal was affirmed by a unanimous panel of the Ninth Circuit.  But the Ninth Circuit has now granted rehearing en banc, suggesting that enough judges see enough of a problem here that they want a large minority of the circuit to get involved.

Why?  I don't fully understand yet, but I will read the panel opinion more carefully and see if I can figure out what's going on.

What does it mean to have “evidence” for a “religious belief” about “the world”?

The question and scare quotes are inspired by Brian Leiter’s effort to define “religious beliefs” with the following (partial) stipulation: “Religious beliefs do not answer ultimately (or at the limit) to evidence and reasons, as evidence and reasons are understood in other domains concerned with knowledge of the world. Religious beliefs, in virtue of being based on ‘faith,’ are insulated from ordinary standards of evidence and rational justification, the ones we employ in both common-sense and in science” (page 18).

I found this definition perplexing, because it assumes that “we employ… ordinary standards of evidence and rational justification” applicable to all “other domains concerned with knowledge of the world.” Such an assumption naturally gives rise to the following question: To accept Brian’s definition, must I reject Nelson Goodman’s claim that there is no single set of standards of justification applicable to different systems of describing the world? Goodman argues in Ways of Worldmaking that there are many different and mutually inconsistent “ways of world-making,” each relative to a particular domain. The ways of world-making for a literary critic, novelist, physicist, and painter obey very different criteria of rational acceptability, even though each purports to describe “the world.” So it is a waste of time to come up with a single theory of rational acceptability by which to judge their various statements about the world. This is not to say that we cannot say that such statements are true or false: Vulgar relativism is still just as self-defeating as it ever was. It is just that we do not have a single, coherent understanding of evidence and reasons that applies across different domains of the world – music, literature, physics, psychology, theology, etc. As Hilary Putnam puts it, the odds are really low that “we can find powerful universal generalizations obeyed by all instances of rationally justified belief”(“Two Conceptions of Rationality,” in Reason, Truth, and History at 104).

I would not invite here an argument between fans and detractors of Goodman. Instead, I offer a simple point of information: To buy into Leiter’s definition of “religious belief,” do I need to reject Goodman’s theory of pluralistic justification?

This question invites a further one. Leiter relies a lot on Simon Blackburn’s recent argument that religious beliefs about the world are not entitled to respect – at least, not if they are (in Blackburn's ungainly neologism) “onto-theological.” Should I translate this statement to mean: “Onto-theological beliefs are not entitled to respect – that is, if one adheres to a particularly crude form of scientism that has been rejected by folks like Nelson Goodman, Hilary Putnam, and William James (See James' Hibbert lectures, A Pluralistic Universe)?” Because, if I receive from Blackburn the disrespect that he reserves for people like Goodman, Putnam, and James, because I am deemed to be just as irrational, unscientific, immune to evidence and argument, etc, as they are, then I think that I can live with that.

Toleration or Respect?

Take a look at Brian Leiter's new paper, posted on SSRN, "Foundations of Religious Liberty:  Toleration or Respect?"  Here is the abstract:

Should we think of what I will refer to generically as “the law of religious liberty” as grounded in the moral attitude of respect for religion or in the moral attitude of tolerance of religion? I begin by explicating the relevant moral attitudes of “respect” and “toleration.” With regard to the former, I start with a well-known treatment of the idea of “respect” in the Anglophone literature by the moral philosopher Stephen Darwall. With respect to the latter concept, toleration, I shall draw on my own earlier discussion, though now emphasizing the features of toleration that set it apart from one kind of respect. In deciding whether “respect” or “toleration” can plausibly serve as the moral foundation for the law of religious liberty we will need to say something about the nature of religion. I shall propose a fairly precise analysis of what makes a belief and a concomitant set of practices “religious” (again drawing on earlier work). That will then bring us to the central question: should our laws reflect “respect” for religion” or only “toleration”? Martha Nussbaum has recently argued for “respect” as the moral foundation of religious liberty, though, as I will suggest, her account is ambiguous between the two senses of respect that emerge from Darwall’s work. In particular, I shall claim that in one “thin” sense of respect, it is compatible with nothing more than toleration of religion; and that in a “thicker” sense (which Nussbaum appears to want to invoke), it could not form the moral basis of a legal regime since religion is not the kind of belief system that could warrant that attitude. To make the latter case, I examine critically a recent attack on the idea of "respect" for religious belief by Simon Blackburn.

Although I think that Prof. Leiter's conclusion that "religion is not the kind of belief system that could warrant [thick respect]" is misguided (in part because his understanding of "religion" is not mine), I find this paper -- like his earlier piece, "Why Tolerate Religion?" -- kind of refreshing, bracing even.  Like Prof. Leiter, I come away from works like Prof. Nussbaum's new book on religious liberty not sure that any case has been (or, given the working premises, could be) made for religious liberty.  Perhaps, as Prof. Steve Smith has been saying for a while, the only solid arguments for religious freedom (that is, for something more than a cost-benefit-based "toleration" of religion) are themselves "religious" or, at least, depend on anthropological and other foundations that we -- even if we are willing to invoke them from time to time -- no longer really accept?

Just a little something to think about over lunch . . .

Greenawalt, Hamilton on the Rule of Law and Religious Exemptions

I learn through Paul H. that there is an interesting exchange between Kent Greenawalt and Marci Hamilton in the latest issue of the Cardozo Law Review.  Greenawalt responds to some of Hamilton's arguments in her 2005 book, God vs. The Gavel: Religion and the Rule of Law, and Hamilton replies to Greenawalt's criticisms.  The exchange is a lovely example of how two scholars writing in the same field, about the same issue, and ostensibly about each others' views on the same issue, aren't really speaking the same language.  One is from Venus and one from Mars.  Below the fold, details of the exchange and a bit of discussion.

Greenawalt wants to talk about whether and how religious exemptions might comport with various ideas of the rule of law.  He begins, as anyone must when discussing the idea of the rule of law, with the observation that the concept itself and the values that it embodies are not so very easy to pin down. Greenawalt proceeds with a careful discussion of different ideas associated with the rule of law, from the formalist core to the more contestable notion that the law ought to be exceptionless, to, finally, the even more contestable idea that a law which does not comport with the "common good" -- or some view of sound morality -- violates the rule of law.  This last conception of the rule of law Greenawalt, following Ronald Cass, would not consider part of the rule of law because that sort of formulation would dilute what is distinctive about the core.

Unless one concludes that religious exemptions from generally applicable laws are never justified (a position that Greenawalt obviously rejects -- does anyone accept it?), the real question -- where the rubber meets the road -- is when they will be justified, what are the circumstances that justify an exemption.  Greenawalt reads Hamilton charitably as arguing that exemptions are only justified when they cause at most "de minimis" "harm to others" (the charity is indeed ample, since Hamilton states at least once that they ought never be granted, period).  For himself, Greenawalt believes that anytime the rule of law is in fact a standard of law -- granting a considerable discretionary range -- the core, formalist idea of the rule of law is destabilized, because individual decisionmakers are left to make delicate judgments about how specific facts match up against the vague language of the standard.  That is exactly the case with the Sherbert free exercise standard (now defunct, but partially resurrected by the Religious Freedom Restoration Act and its state analogues), which requires judges to determine whether a law imposes a "substantial burden" on a person's free exercise and whether the burden serves a "compelling state interest" that is "narrowly tailored." 

In fact, the legal system, Greenawalt writes, is "shot through with elements that do not conform with a simple rule of law model" -- and for what it's worth, I agree entirely (though I have more than a strong suspicion that Greenawalt does not share my own skepticisms).  The "standard of law" is, then, on Greenawalt's view, a pervasive and indelible feature of the American legal system that is in perpetual tension with the rule of law.  And the key to negotiating the tension is, as in all of Greenawalt's work, nuance and delicacy in the face of particular facts that incline us more toward the hard-and-fast rule of law, or instead toward the discretionary standard of law.  Privileges and exemptions that parents enjoy in respect of their children, for example, might be based on either a pre-political or a rights-based understanding, but there is little doubt that while a harm-oriented common good gauge of value must somehow figure into the picture, it can hardly be the whole picture.

It is this sense of nuance -- of the importance of motivations in assessing whether two cases are, in fact, alike -- that informs Greenawalt's discussion of religious exemptions.  These distinctions are illuminated in his discussion of what to do with parents who believe that faith healing will cure their extremely sick children -- children who need medical care and who die because their parents failed to provide it (this is an area of heated interest for Hamilton).  Does it matter -- ought it matter -- to the criminal law and to the rule of law that these parents did not intend the death of their children -- indeed, that they actually intended to save them?  As a general matter, of course, such distinctions are relevant indeed in criminal law; they mark the distinction between purposeful and negligent homicide.  But ought they be?  Are they an example of treating like cases unalike?  Here Greenawalt's discussion is rich and ambivalent: "If the crucial considerations come down to effective deterrence and competing views about 'just' punishment, we should not understand a well considered decision to exempt those parents from all or some forms of criminal liability as an offense to the rule of law (whether or not we actually agree with that decision)."  The tension between the rule of law and the standard of law -- and the rival considerations of policy and principle -- cannot lead to a single, superimposed, and good-for-all-purposes conclusion in such cases.         

As for Hamilton's response, she obviously wants to talk about different things.  She talks about the superiority of legislators to judges in arriving at decisions about exemptions and the dangerousness of religion.  These are themes that she has sounded repeatedly.  She makes one profoundly, even gratuitously, dubious claims about her own work ("Harm arising from religious entities was unacknowledged, and even taboo, before the publication of God vs. the Gavel.  There was a moral imperative in the culture that forbade negative talk about religion."  Indeed?  Can it be that 2005 was the year the dam finally burst?  First God vs. the Gavel and then, just the following year and hot on its heels, The DaVinci Code.). 

She does not want to talk about the rule of law and the various meanings it might have, and the various ways in which those meanings might be consistent (or not) with exemptions from generally applicable laws.  She wants to talk about "substantive harm" and that people just don't see how bad religion can be.  And since religious institutions cause harm -- and Hamilton is most able at documenting the evil done in the name of religion -- they ought not to receive any exemptions or, at least, the legislature ought to put their claims of exemption under the "common good" microscope before granting any exemptions. This is no surprise, I suppose.  Hamilton's strength has always been the passion that she brings to her research and her deep knowledge of the abuses perpetrated in the name of religion. 

Hamilton's comments bring back to mind some of my own criticisms of Hamilton's book in this review essay (non-novel, I know, I know) from a few years back. One of these was that Hamilton's conception of the common good is not very precisely specified.  Another is that for someone who has so persuasively demonstrated the failures of the legislature to, as she puts it, "shoulder the[ir] responsibilit[ies]," it is confounding that she should be prepared to vest such unfettered trust in the wisdom of the legislature to make these assessments.

At all events, the exchange is worth reading, if only to see that the law and religion field is populated by different sorts of scholars making very different sorts of claims, drawing on their own strengths.  Just like any other field, it seems.

Colorado death-penalty vote

The Colorado House of Representatives has voted -- narrowly -- to repeal the death penalty.  According to this story, the person who cast the last and deciding vote, Rep. Ed Vigil, did so on the basis of "moral appeals he had heard, including from Archbishop Charles Chaput, the senior Roman Catholic clergyman in Colorado."  If this is true -- that is, if Rep. Vigil voted as he did because he was moved by such appeals -- then should we have any concerns (even if we welcome, as I do, the legislative repeal of capital punishment) about his vote?  (No, we should not.  But . . . why not?).

The "Court"

The Big "C"

Why do law professors use lowercase “court” for the most part, but capitalize the word when referring to the U.S. Supreme Court? It makes American legal scholarship seem sort of parochial, and, correspondingly, a little silly, don’t you think? But more than that, I worry that we’ll end up giving the “Court” a big head. Capitalizationally speaking, it’s just getting a little too close to Him for my comfort. Next thing you know the U.S. Supreme Court will get on such a high horse they’ll think they can select the president.

Daley's confusion

In this op-ed, "An uneasy mix of religion and politics," Bill Daley attacks Chicago's Catholic archbishop, Cardinal George, for criticizing the University of Notre Dame's decision to honor President Obama with the commencement address and a ceremonial degree.  (I realize that the controversy surrounding this decision might seem exotic, or even bizarre, to those not immersed in the "what does it mean to be a Catholic university?" conversation, but bear with me.)  Daley's op-ed reflects, I think, a deep, and actually dangerous, confusion about church-state separation.

According to Daley, the Archbishop's critique is an unsettling example of "mixing" religion and politics.  He writes:

[N]o matter how strongly we cherish our faith and values, we have to remember that we are not alone in this world.

That idea is what distinguished the fledgling United States from the many countries with state religions. It still distinguishes us from much of the world. No matter how certain we are that our church is the one true path to salvation, we can never cross the line and believe that it is our God-given right and duty to force our beliefs on others. Otherwise, we are no different than the forces of religious fanaticism and terror that we are fighting today.

The suggestion that, by urging a Catholic university to think more clearly about the implications of that character for that university's own decisions and practices, a Catholic bishop is pushing us toward a "state religion," or "forc[ing] . . . beliefs on others" is seriously misguided.  In fact -- and this seems true whether or not one supports President Obama's policies, agrees with him, or thinks Notre Dame should honor him -- the more serious threat to church-state separation, properly understood, is the suggestion, from one with Mr. Daley's connections to political power, that Catholic bishops act wrongly -- act un-American -- when they tell Catholic universities how better to be Catholic.

Dolan on Summum

Prof. Mary Jean Dolan (John Marshall) sends in these thoughts, about the Summum case:

Maybe because I’ve been working on the Pleasant Grove case for a year now (and maybe also because my grade-school age children’s toys don’t make for charming metaphors!)(see Jay Wexler’s March 2^nd post), I’d like to add to the discussion about the case, and to hear what others think on a point I’ve been ruminating over.  As Chris Lund’s on-the-spot Feb. 25^th post pointed out, the Establishment Clause questions so prevalent in the press, and at oral argument, were glossed over to get that 9-0 judgment.  It may be true that for Ten Commandments monuments, Van Orden is the last word, at least for a case involving such similar facts.  (Justice Souter’s concurrence saying, yes, it’s government speech, all right, “an expression of a government’s position on the moral and religious issues raised by the subject of the monument,” seems fairly unlikely to go far, given that the “secular message” tactic previously carried the day.)   

    Avid readers of the decision may have noticed that none of the five opinions cite to Petitioner’s briefs.  While Justice Alito addressed Respondent’s arguments, he relied solely on several amicus briefs, including the IMLA brief.  Partly that’s because the amici provided useful examples of the huge (negative) impact a decision for Summum would have had on the country’s monuments, but there may be more to it than that. 

Petitioner’s counsel, Jay Sekulow, consistently argued that monuments are governed by the “speech selection” cases (Forbes, Finley), while Justice Alito’s decision built on the Johanns line (substantive government message, conveyed with private assistance).  Justice Alito seemed to agree with an argument emphasized in the IMLA brief, that when a city decides to display a donated monument, it is expressing at least a broad identity message.  Petitioner likely had an eye on the Establishment Clause and positioning for future cases.  (Shameless plug alert:  Emphasizing my differences with the ACLJ on the Establishment Clause, inappropriate in writing IMLA amicus brief, is one reason I took the unusual step of writing a before-the-decision law review article, in Catholic University Law Review.)

So, the Pleasant Grove decision does seem to saddle governments with their monuments’ messages.  (Nailing down those messages, though, still provides wiggle room.)  Any early thoughts on how this particular point will affect the play between the Free Speech Clause and the Establishment Clause in next cases, and other contexts?   I’d love to hear from others who’ve given this case extended thought.

Religious Liberty and Conscience at Villanova

Readers might be interested in attending Villanova Law School’s third annual Scarpa Conference on Law, Politics and Culture this Thursday, February 19, 2009, at the Connelly Center on Villanova’s main campus.

The theme of the conference is “Liberty of Conscience and Religious Equality,” and the all-star speakers include Martha Nussbaum from the University of Chicago, Patrick M. Brennan from Villanova, Jesse Choppr from Berkeley, . . . Kent Greenawalt from Columbia, John McGreevey from Notre Dame, Roderick Hills from New York University, Very Rev. Richard Schenk, OP from the Dominican School of Philosophy and Theology at the Graduate Theological Union at Berkeley, and Geoffrey Stone from the University of Chicago.

HT:  First Things

Continuing legal education credit is available for attorneys, and more information can be found here (PDF).

Equal Access with a Twist...

A district court in Minnesota recently decided an equal access case that has some important implications.  Child Evangelism Fellowship had sued the Elk River School District, having wanted to distribute its literature on school bulletin boards and at school open houses.  Elk River refused to let it; CEF claimed this violated the Free Speech Clause.  The Court's opinion grants CEF a preliminary injunction, but the way the opinion decides things suggests that a permanent injunction is certainly on the way.

The interesting thing about this case is the role of this federal statute, 20 U.S.C. § 7905, known as the Boy Scouts of America Equal Access Act.  Passed in 2002, Section B of the Act states that:

[No school or school district] that has a designated open forum or a limited public forum and that receives funds made available through the Department shall deny equal access or a fair opportunity to meet to, or discriminate against, any group officially affiliated with the Boy Scouts of America, or any other youth group listed in Title 36 of the United States Code (as a patriotic society) that wishes to conduct a meeting within that designated open forum or limited public forum, including denying such access or opportunity or discriminating for reasons based on the membership or leadership criteria or oath of allegiance to God and country of the Boy Scouts of America or of the youth group listed in Title 36 of the United States Code (as a patriotic society).

Now in part because of this statute, Elk River's policy was to permit distribution of three types of material -- (1) "materials directly relating to official and school-sponsored actvities," (2) "materials directly in support of school activities," and (3) "materials from [these patriotic organizations] after staff review."  Btw, these patriotic organizations are listed in 36 U.S.C. § 20101 et seq. -- they include groups like Future Farmers of America (§ 70901) and Little League Baseball (§ 201036).

Anyway, CEF's claim was straightforward: If you allow distribution of messages from these "patriotic" organizations, you have to allow our messages.  Whether an organization is listed as "patriotic" in Title 36 is hardly a viewpoint-neutral classification.  And apparently, Elk River made the ill-advised concession that there was a public forum here (see p. 6).  And so, under settled First Amendment law, CEF wins.

There are some important issues here.  There's always the aside that I don't know why school districts concede the public forum point.  Here the only outside organizations that Elk River permitted to send flyers are the patriotic ones that Congress singled out for special treatment.  Everyone else -- including political groups offering flyers with high-value political speech -- are banned.  (As another aside, note that if Elk River argues no public forum, Section 7905 suggests that it can exclude even the patriotic groups.)

Most importantly though -- and this is the heart of the post -- if the Free Speech Clause gives CEF rights co-extensive with the statutory rights of the aforementioned "patriotic" organizations, then one of the big unresolved issues in church/state law is now resolved.  Because the patriotic organizations don't just have the right to meet -- Section 7905 also gives them freedom to establish "membership or leadership criteria" and to have an "oath of allegiance to God."  That would mean CEF (and CLS and so on) would have the right to exclude gays and lesbians from joining or from leadership posts, anti-discrimination rules apparently notwithstanding.  CEF can claim that "patriotic" organizations have the right to meet without gays and lesbians, and that the Free Speech Clause prevents that right being given only to organizations the government defines as "patriotic."

Whither the culture wars?

A whole lot of folks must have been out of the office yesterday because I am quoted in a Foxnews.com article on political clashes between the Catholic Church and the Obama administration. Although I am not sure that it quite captures my remarks to say that "Catholic politicians have been excommunicated in recent years for not supporting positions consistent with the church's teachings," I did note what seems to me to be an increased insistence upon on at least certain Bishops on faithfulness to the Church's position on life issues (as opposed to postions generally) and a willingness to enforce that through denial of the Eucharist and cited, for context, New Orleans Archbishop Joseph Francis Rummel's excommunication of three segregationist politicians in 1962. 

Just how aggressive the Church should be in insisting that Catholic politicians follow Church teachings is a topic that has been debated for as long as I can remember (a period that has come to be distressingly long) and I am not sure that I can add anything to on this cold January morning. I am a confirmed opponent of privileged status for public reason and a staunch supporter of political moderation by the church.

But I do think that the Freedom of Choice Act presents the possibility for political total war. The key, it seems, is whether there will be 41 votes in the Senate to block it and how aggressively the administration and pro-choice movement pushes for it. Whatever the outcome, a concerted effort to pass FOCA will energize the pro-life movement in a way that may help GOP candidates in 2010.

At a larger level, potential controversies over abortion, assisted suicide and stem cell research and certain other biomedical developments can't be dismissed as "childish things" or "wedge" issues designed to take our eye off the economic ball. The Catholic Church supports (often wrongly, I think) much of what might be characterized as a "liberal"position one economic issues, yet insists on a view of the human person that is inconsistent with what seems to be the consensus view of political liberals. This difference will continue to be contentious because it matters.

Cross posted at Marquette University Law School Faculty Blog and Shark and Shepherd.

"The Meanings of Religious Freedom in America"

This conference -- "Freedom of, Freedom for, or Freedom From Religion:  The Meanings of Religious Freedom in America" -- should be great.  If you are anywhere near South Bend on Feb. 4 and 5, consider coming.  Panelists and speakers include Mark Lilla, Nick Wolterstorff, Bill Galston, Michael Zuckert, David Campbell, Dan Philpot, John McGreevy, and Mark Noll (and me).  Here's more:

At America’s founding three different and sometimes competing visions of religion in American political life were planted in American soil: freedom of religion, for religion, and from religion. These three distinct conceptions converged at the time of the American founding in the form of the religion clauses of the First Amendment, as well as the many parallel provisions in the state constitutions. Yet Americans do not always agree on the role religion should play in American public life. Should it be excluded from the public sphere or restrictions placed upon its use in public life or is the democratic process weakened and civic life diminished without the full participation of those with strong religious views? What should the relationship between religion and public life be in America? What is religious freedom today: freedom of, for, or from religion?

Regulation and the Religious Voice

So here's a half-baked idea for a project that I've been thinking about doing for a long time but have never gotten around to.  Maybe if I put it out there, someone can tell me how bad an idea it is, and I can put it to bed forever.  Or maybe people will have good ideas that will spark me to get going on it. 

The project would be at the inters . . . that's right, I'm going to say it, despite every fiber of my being telling me don't don't don't say it no no-- the intersection (ahh, it's done) of two fields I teach in--law and religion, and administrative law.  I've thought about and written about this debate that I know has been aired here on Prawfs before regarding whether it's appropriate for religious citizens to rely on their religious beliefs when reaching decisions on public issues and to articulate their views in religious terms.  I think the answer to this is generally yes.  It's also clear I think (right?) that as a practical matter, religious groups and citizens do attempt to influence policy through lobbying at the legislative level.  But since so much important policy is made by federal agencies, I wonder whether religious groups and citizens participate in the notice and comment process before agencies to influence agency decisions on policies that matter to them.  Since I teach environmental law, I often think about this in those terms: do religious groups that, for example, support protecting endangered species and worry about global warming submit comments to agencies during notice and comment on rules that implicate these concerns, and if they do, what kind of language do they use?  Is it explicitly religious, or do they translate this religious language into the language of secular policymaking?  And if it's the latter, is this something we should applaud or worry about?  What should an agency do if it receives an explicitly religious comment from a prominent group.  Should ignoring it be considered arbitrary and capricious?  Would considering it violate the Establishment Clause?  So many questions.

Anyone think this is an interesting project to pursue?  Anyone know of work already done on it?  There would certainly be an empirical part--combing through online comments in rulemaking proceedings to see whether I can find comments from religious groups and individuals and what those comments say.  But how would I pick which rulemakings to look at?  How many would I choose?  Etc.

Ecclesiastical Immunity

Last month, a trial court in Connecticut applied the ministerial exception to dismiss a defamation claim brought by a charitable organization against the Catholic bishop of Connecticut. In brief, the vicar of a Connecticut parish had organized a charity in his native Tanzania and, among other things, raised funds for it from his congregation. The Bishop apparently came to believe that the charity was beset by financial irregularities and, after first ordering the priest to stop raising money for it, removed him as vicar. The Bishop then sent a letter and spoke to parishioners telling them that the charity was ineffectively managed and engaged in questionable financial practices.

The priest's action against the diocese (alleging, among other things, racial discrimination) was dismissed based upon the ministerial exception. No surprise there.

The charity then sued the Bishop for tortious interference and defamation. As noted above, these claims were also dismissed based upon the ministerial exception. The exception has been applied in contexts other than claims based upon employment. In my home state of Wisconsin, for example, it has been applied to claims for the negligent hiring, retention and supervision of priests who committed sexual abuse.

But should it be applied here? The tortious interference claim seemed easier. The Bishop certainly had a right to order his priest not to raise money for it and certainly should be privileged to tell advise his congregants that they should not donate to it.

But what about the claim for defamation? Should he be privileged to make what were alleged to be false statements of fact about the charity? Does the assessment of whether or not those statements are false really implicate canon law? Doesn't it depend upon what they were?

Isthe idea is that regard for free exercise requires allowing the Bishop breathing space to explain his decision to parishioners or to enforce canonical requirements that fund raising appeals be "truthful and forthright...?" Could that need be accommodated by something like an "actual malice" standard or would the application of that standard result in excessive entanglement?

H/T: Religion Clause Blog

Cross posted at Marquette University Law School Faculty Blog

So help me (fill in the blank)

Michael Newdow has filed a law suit challenging that part of the oath of office to be administered at the presidential inauguration that contains the words "so help me God."

Of course, he will lose. Even if he is found to have standing, this falls into the category of cases that I can be properly dismissed with nothing more than a shrug, grimace and "Dude."

But if one gets past its inveterate silliness, it's hard to deny that the case has doctrinal legs. Either under the Lemon test of Justice O'Connor's endorsement test, it is hardly frivolous to suggest that government communication that acknowledges the existence of a God and the fact that this God can help us might advance religion or endorse it in a way that makes nonadherents feel like disfavored members of the community. While a court might (actually would) dismiss such an argument by invoking the troubling notion of ceremonial deism, there is no reason why this must be so. 

My own view, expressed here and further developed as it pertains to government speech in a forthcoming piece, is that the injury that Newdow seeks to prevent, while certainly real (if not as substantial as is often claimed), cannot be prevented in any type of evenhanded manner. Government inevitably will send messages disfavoring certain religious presuppositions and the common distinction - that these are not theological messages - does not comport with the actual way in which dissenters experience these messages or what theologians and sociologists tell us about religious formation.

While I think that there are non coercive messages that can raise establishment clause concerns, a mere invocation suggesting that the government endorses the existence of a monotheistic God who is somehow active in human affairs is safely on the right side of the line. 

Fictionalizing the Shoah, or Why tenure remains important

I came late to the story of Herman and Roma Rosenblat, two survivors of the Shoah (he at Schlieben, a sub-camp of Buchenwald, she pretending to be Christian and living on a nearby farm). The tale they told for a decade until last weekend is that during seven months in the winter of 1945, Roma (then nine) met Herman (then a teen) at the camp fence and tossed food to him over the barbed-wire fence. They then met on a blind date in Coney Island in 1957, told their stories of the War and realized who the other was; they fell in love and married and remain together, retired near Miami. This love story landed them two appearances on Oprah and a book contract with Berkley Books (a division of Penguin Group); their story was the subject of a children's book published last fall and of a movie, titled Flower of the Fence, scheduled to go into production in March.

But Ken Waltzer, a Holocaust expert and the director of the Jewish Studies program at Michigan State, looked into the story and began calling it into question. So did Deborah Lipstadt of Emory University, an appointee the United States Holocaust Memorial Council. The New Republic did an extensive investigation, including talking to other Schlieben survivors, some of them members of Rosenblat's family, who denied the story. Last Saturday, Berkley canceled the book after Rosenblat admitted to Harris Salomon (the film producer), his agent, and the press that the story was false. Roma was, in fact, in hiding in a different part of Poland, 200 miles away; Herman did not go to the fence to get food every day for months on end. TNR coverage here, here, here, and here. Comments from Waltzer here and here and from Lipstadt here and here.

I want to touch on two points in this story--one on the merits of the memoir controversy and one closer to the academic focus of this blog.

On the merits, I agree with the argument that falsified stories about the Shoah are troubling. But not because I think that enough small falsifications leave room to deny the entire thing. Rather, my problem is that this event was so horrific and that horror is lost amid false stories that humanize the events and, in the course of humanizing, make them seem more benign. The detail that caused scholars to question the story was that the only space along the fence at Schlieben where such an encounter could have occurred was right by the SS barracks; no prisoner and no Jew in hiding would or could deliberately walk that close to an electrified, barbed-wire fence, much less to the barracks and to the SS on a daily basis. A story, purporting to be true, that suggests otherwise makes the SS, and everyone's situation, appear less dangerous.

Waltzer sharply criticized the "culture makers"--Oprah, Berkley Books, producer Salomon--for failing to investigate or even question the veracity of a story that was on the "far end of implausibility" to begin with. He argues that the willingness to accept the story "shows something about the broad unwillingness in our culture to confront the difficult knowledge of the Holocaust." His suggestion is that the culture makers fail when they try to sugarcoat the Shoah for Middle America, resulting in miseducation rather than education. The flip side, as expressed to TNR by film-producer Salomon, is that the "candy-coated message" gives the story resonance with middle America and "can do more to teach people about the Jewish experience during the Holocaust in a way nothing before has done."

Count me on Waltzer's side of the fence (so to speak) on this one. I do not believe that we can teach about the Jewish experience during the Holocaust (or any experience, frankly) by presenting a story so sanitized that it presents a false (not just fictitious, but false) image of reality. Quite the opposite--we disserve the Jewish experience by giving it an impossibly pleasant veneer. Interestingly, Salomon for now plans to go forward with the movie, which he says was to have been a fictionalized "based on" story, rather than a true-to-life translation of the memoir. Salomon apparently sees this story, fictional though it may be, as much like the recent film The Boy in the Striped Pajamas in depicting a friendship between people on opposite sides of the camp fence. But, as the TNR story pointed out, that at least acknowledged that it was a work of pure fiction. (See here for a taxonomy of Hollywood Holocaust plots).

Now on to the academic point: This story suggests something about the continuing need for tenure. It is quite common to question that institution, given the negative incentives it provides. Or it is used to protect scoundrels, those who use it to write and say outrageous and offensive things (something that I am all for as a general matter, but not all people and not all universities are). But sometimes tenure still is necessary to protect scholars who are doing the right thing.*

As Waltzer's skeptical investigation, and the reportage by TNR, intensified, there was pushback from "culture makers" with a vested interest in this project going forward, most notably from producer Salomon. One move was to contact the dean at Michigan State to question and complain about Weltzer's research. Salomon also called it "bloody repugnant" that Weltzer spoke with TNR. Salomon also went after Lipstadt via e-mail, suggesting that she was slandering Rosenblat by questioning the story, that he (Salomon) knew more about the Shoah than she did, and that her questioning of the story is a "sin to the memory of all those who perished so long ago."

Of course, in neither situation did anything happen beyond sharp criticism of the scholars--which is, of course, completely fair game. And in neither situation did the University decline to support the professor fully and there is no reason to think they would not have done so had it come to that. But a university granting tenure is Ulysses tying himself to the mast--a precommitment that it saves it from even the possibility of its lesser tendencies. Perhaps the University never even will be tempted and perhaps scholars never will "need" to rely on tenure (I frankly never expect to have to). But it continues to serve a purpose, even if it only is wielded in the rarest and most exceptional circumstances. If I am Ken Waltzer, I feel better and safer entering into this fray knowing that I have tenure behind me.

* Yes, I recognize the subjectivity of those last two sentences.

Carol categories

It's a little late for this post, which also has nothing to do with law or prawfdom, but during this holiday season I've been thinking about how there are different kinds of "Christmas" songs, or how such songs are about "Christmas" in different ways. (I will henceforth use "Xmas" for "Christmas," since it's easier to type. As an aside, why does the "X=Christ" translation only occur here? I'd like to see more references to "Western Xianity," or "Xopher Columbus," or "Jesus X.") I think these songs break down into four meaningfully distinct groups.

Category 1: Winter Songs. Some songs are associated with Xmas and seem to be heard only during "the holidays," but are really about the season of winter, and would be just as appropriate in mid-February as they are in mid-December. These songs include "Jingle Bells," "Jingle Bell Rock," and "Sleigh Ride," all of which are about riding in a sleigh; "Winter Wonderland"; "Frosty the Snowman"; and "Let it Snow, Let it Snow, Let it Snow." None of these have any more relation to Xmas than does, say, "Baby, It's Cold Outside." It's perfectly OK to continue singing or whistling any of these songs for the next two months without feeling odd about it. Really. Go right ahead.

Category 2: "Holiday" Songs. These songs recognize the existence of Xmas, but have no religious content at all. Xmas in these songs has the following features: it's a holiday; it's at the end of the year; and spending it with loved ones is important or desirable. In many cases, "Xmas" could be replaced with Thanksgiving, or a late-year birthday, or Festivus with no real damage to the spirit of the song (though in some cases the song includes certain Xmas-related details, like references to a tree or gifts instead of a pole or the airing of grievances).

These songs don't take any direct positions on matters of faith. They merely note the existence of Xmas (or the "holiday season") and, often, associate it with a positive sentiment we might call "good cheer." Obviously the "holiday season" revolves around a specific holiday which is in fact a religious holiday, but these songs themselves have no religious content. These, then, are the sort of Xmas songs that can most easily be sung by Barbra Streisand, or written by Irving Berlin. Even non-Xians can endorse a day off to spend with your family (though, of course, they might prefer if the day off were not given because of its importance to Xians in particular).

Perhaps the archetypal song in this category is "Home for the Holidays," which doesn't even mention Xmas. But there are lots of others too: "The Most Wonderful Time of the Year"; "Deck the Halls"; "Silver Bells"; "White Xmas" (and, for that matter, "Blue Xmas"); "I'll Be Home for Xmas"; "Have Yourself a Merry Little Xmas," which I find quite moving when sung with the original lyrics, written during WWII (they seem to be making a comeback during the current wartime period). Many of these are among my favorite holiday songs, except "Most Wonderful Time," which is clearly overselling, in my opinion.

Some of the great modern pop songs about Xmas fit into this category too: "Xmas Wrapping" by the Waitresses; "Happy Xmas / War is Over" by John Lennon; "Fairytale of New York" by the Pogues, which is frequently voted the most popular Xmas song in the UK, notwithstanding any controversy about its lyrics.

Category 3: Santa. Too many songs to name, and they're mostly easy to spot, though some are borderline (e.g., I'd put "The Xmas Song" in this category, though its spirit might be more in Category 2). Santa songs are more Xmas-specific than the Category 2 songs, though they're about an independent Xmas mythology of flying reindeer, diligent elves, etc., rather than about the birth of the (alleged) messiah (whose central message, it must be noted, flies in the face of any strict "naughty or nice" accounting scheme). Still, the Santa mythology is quite evidently Xmas-specific and therefore can easily be seen as emitting a pro-Xian, anti-non-Xian vibe -- more so than the Category 2 songs, in my view, though I'd be curious to know what others think. Santa songs might also irritate due to their seeming (or, sometimes, outright) embrace of Xmas-related consumerism, which Xians as well as non-Xians might oppose.

I guess "Father Xmas" by the Kinks, which imagines a department-store Santa getting mugged, would also fall in this category, though it's not exactly pro-consumerism.

Category 4: Baby Jesus. These songs are For Believers Only. Their lyrics contain one or more of the following: a manger; shepherds; three "wise men" and/or "kings" following a star; angels; a baby boy who would grow up to be Our Lord and Savior.

I tend to think Category 4 songs belong in church, or else in the home. Even the ones I like make me feel uncomfortable when they're sung, say, on a usually non-religious TV show. I also tend to think, maybe even more strongly, that only Category 4 songs belong in church. As a child attending Xmas Mass, I always found it inappropriate if Santa showed up at any point, which he sometimes did.

I don't know why I've been thinking about this, except that it's something to do other than grade exams.

Is choice free only in a cocoon?

There is much I agree with in Rick Garnett's post about Dahlia Lithwick's concern over what she sees as a selective concern over the rights and autonomy of health care providers, sometimes overweening (the new Bush regulations on conscience protection) and at other times oppressive (mandates to provide certain information to patients seeking abortion), that is, in her view, consistent only in its resistance to the accommodation of the choice to abort.

Let me be deliberately provocative.

So what?

Honesty compels me to admit that, since I first wrote a consideration of the constitutional right to choose an abortion as part of the Harvard Law Review's Developments issue on the constitutionalization of rights loosely affiliated with the family and taught the case on innumerable occasions, I have never found any of the various defenses of Roe v. Wade very convincing. But that's not pertinent here. It is the law and there is a rather broad constitutional right to choose to have an abortion in the United States.

But that does not, it seems to me, imply that the government need adopt policies that will encourage that the right to choose be exercised in any particular way. It is one thing to recognize an individual right to choose to have an abortion and quite another to require that another individual provide one. It is one thing to recognize a right to choose and quite another thing to say that the government may not mandate the provision of certain information that it believes to be pertinent to the exercise of that choice. We have the right to believe and say and even do all manners of things that government nevertheless tries to discourage.

One does not have a right, I think, to be free from challenge to the moral presuppositions underlying abortion rights or to be told that, at least for some people, choosing to abort has adverse consequences. While we can argue about these messages, it is not obvious to me that they are any less tendentious and disputed than messages delivered by the government in a variety of other contexts.

Of course, this does not mean that Lithwick has to support the particular policies that she complains of. She may believe that the state has no business reminding those seeking an abortion of any particular view of the moral stakes of abortion (other than, by silence, to imply that there are none - or at least none with which the larger community need be concerned) or that the view that a decision to abort may have unfavorable consequences is just wrong.

Lithwick sees an inconsistency. She argues that "[t]he freedom and autonomy of doctors who oppose abortion are protected by law" but that "those willing to provide abortions can be forced to deliver a state message with which they completely disagree."

But aren't two different types of rights at stake? The first is the right of a professional to refuse to provide a service that she regards as morally wrong - to refuse, as someone once said of capital punishment, to to be "in on a killing." The second is the right of a professional to be free of regulations that require disclosures which she believes need not be made. The former seems to be a claim to be free from an extraordinary imposition on conscience. The latter is certainly significant but about as unique and extraordinary as package inserts and informed consent laws.

Of course, the questions get more complicated as the conscientious objection is to matters that most of us assume are morally unobjectionable (e.g., birth control) or the right to be asserted is against a private employer rather than universal legal compulsion.

I am sure that the various arguments thought to underly a constitutional right to abort are relevant here. I can imagine this is so, although someone who actually believes that there is such a right could make that case better than I. My point is that the existence of a right, in and of itself, does not imply anything about the propriety of the policies that Lithwick objects to or render them inconsistent.

A new "hot topics" program at AALS

My colleague Lloyd Mayer -- whose work relating to the constraints on political activity by tax-exempt churches has been mentioned here before -- sent me this announcement about an interesting looking "hot topics" program at the upcoming AALS meeting.  A great line-up of people will be discussing this:

The relationship between church and state has always been fraught with tension, as some advocate a strict separationist approach and others support interaction on various levels. In May 2008, a conservative religious freedom group, the Alliance Defense Fund, launched an organized campaign to challenge one particular flashpoint for disagreement: the extent to which pastors, rabbis, imams, and other religious leaders speaking to their congregations should be able to express views about politics and particularly about candidates for public office. Thanks to a federal tax provision, churches and other houses of worship have in theory had to either restrain their leaders from expressing such views from the pulpit or face the loss of the significant tax benefits they enjoy. The recruitment by the ADF of pastors at more than 30 churches to challenge this restriction on First Amendment grounds, and the demands from supporters of a strong separation between church and state for the IRS to enforce the restriction against these churches have brought this flashpoint to the fore. The panel will discuss the legal and public policy rationales that support and oppose the restriction and also this looming confrontation’s broader ramifications for religious freedom, elections, and federal tax law.

And so this is Christmas ... or not

Since I am spending the holidays here at Prawfs and am about to accede to my wife's insistence that I erect various symbols of the "Winter Solstice" (or at least the Christian and western celebration that occurs about that time) around our house and property -- think of Clark Griswold --  I thought it meet and proper to acknowledge the beginning of the annual "Christmas Wars." This year's Fort Sumter seems to be the Washington state Capitol building. 

There is, of course, a triviality to all of this. It does not establish religion to place a Nativity scene in front of city hall anymore than the failure to do so plunges us into a Godless abyss. But these battles aren't about mangers and menorahs which is one of the reasons that the Supreme Court's approach to the matter based, as Justice Scalia puts it, in considerations more commonly associated with interior decorating than the judiciary" makes no one happy.

What brings this all to mind is less our December ritual of dueling displays and Holiday reprise of the old Miller lite commercial in which "less filling/great taste" becomes "Happy Holidays/Merry Christmas," than it is a recent decision of the European Court of Human Rights in Dogru v. France and Kervanci v. France upholding the French practice of barring Muslim girls from wearing Islamic head scarves in physical education classes over a claim that it violated the girls' freedom of thought, conscience and religion under Article of the European Convention on Human Rights.

What caught my attention is the court's emphasis on the public secularism upon which the French Republic has been based. As a consequence, the court observed, the "citizen must respect the public arena that is shared by all" and, at least in the public school context, believed that the state could exclude ostentatious and conspicuous religious displays that might create undue pressure and exclusion (although here of the students choosing to adopt the religious display.)

While depending on the particulars, the case might be decided similarly here, the frank embrace of secularism is not as readily reconciled with our tradition. While we certainly have had - and still have - judges and scholars who equate secularity with neutrality, there is also a strong counter tradition, supported, I think, by the postliberal understanding of the nature of religion, i.e., that it is shaped and sustained in communities that are permeable and influenced by the larger culture. It is not simply private and is vulnerable to outside influence. A naked public square is not silent and this is why "Happy Holidays" is not seen by all as a happy resolution.

Of course, most of the Christmas cases seem to turn on whether something is government speech as opposed to private speech in a setting in which attendance is compulsory. That may mandate a different outcome but, as the state has grown larger, the dialectic is the same. Does pluralism require the suppression of points of difference? In a truly pluralistic world, is that even possible?

More, I'm sure, to follow - both in Christmas Present and Christmas Future.

Responses to "Excluding Religion"

(Prawfsblawg alum) Nelson Tebbe's new paper, "Excluding Religion", is well worth a read.  As are, I hope, the responses to the paper that Tom Berg, Steve Smith, and I have posted at the University of Pennsylvania Law Review's "PENNumbra" site.  Here's the abstract for my own response (available here):

In a thorough and thoughtful article, Excluding Religion, Prof. Nelson Tebbe asks "whether the government may select religious entities for exclusion from its support programs?" and concludes that, sometimes, it may. "The government," he contends, "need not remain neutral toward religion in its support programs[.]"

In this short response to Tebbe's paper, I first suggest that the reasons Tebbe offers for such exclusion - including "promoting equal citizenship for members of minority faiths . . . , fostering community concord, [and] respecting taxpayers' freedom of conscience", are not particularly strong. Next, I turn to the various "limits" that Tebbe imposes on his permissible-exclusion claim, and attempt to show that, in fact, these limits fit uneasily with the claim they constrain. The aim of this attempt is not to cheer state efforts to - in Tebbe's words - "shape the content of citizens' beliefs through government speech and other means," but instead to warn that the inevitability of such efforts poses a real threat to religious freedom, one that is not likely to be repelled with assurances that the state must act nonpreferentially, or must act with a secular purpose, or must not make theological judgments. If we believe, as Tebbe and I do, that there should be limits on the power, and on the ambition, of governments when it comes to the content of citizens' commitments and the objects of their loyalty, it is essential that we think hard not only about the location of these limits, but also about the reasons for them and the worth of what it is that they protect.

Prof. Stone, Prop. 8, and church-state separation

An item from the "debates not likely to be resolved anytime soon" file:  In this piece, Prof. Stone contends (among other things) that California's Proposition "was a highly successful effort of a particular religious group to conscript the power of the state to impose their religious beliefs on their fellow citizens, whether or not those citizens share those beliefs", and that "[t]his is a serious threat to a free society committed to the principle of separation of church and state." 

Now, Prof. Stone and I went back and forth on (pretty much) the same question, a year or two ago, in the context of the Supreme Court's decision upholding the ban on partial-birth abortion.  I wrote then that "it is not clear why the claim 'human fetuses are moral subjects and this fact constrains what should be done with and to them' is any more 'religious', or any less 'moral', than the claim 'all human beings are moral equals, regardless of race, and should be treated as such in law.'  What's more, even if it were true that the former claim is 'religious' (certainly, for many, it is religiously motivated or grounded), [it's enactment into law] does not violate . . . the 'separation of church and state' that our Constitution is thought to require."

And, here we are again . . . .   

There is much in Prof. Stone's piece with which I (and, I would think, most reflective religious believers) agree.  For example, we agree -- as it happens, I have good religious reasons for believing -- that, as Greg Kalscheur has put it, there are "moral limits on morals legislation"  We (and Pope Benedict XVI) also agree entirely regarding the importance of the principle of "separation of church and state", properly understood. 

To invoke this principle's importance though, and even to point to the fact that religious believers were much more likely to support Proposition 8 than were non-believers, does not, in my view, establish the point that Prop. 8 is (putting aside other questions about its merits) an effort to (in his words) "conscript the authority of the state to compel those who do not share their religious beliefs to act as if they do." 

As Stone himself writes, "[l]ike other citizens, [religious believers] are free in our society to support laws because they believe those laws serve legitimate ends, including such values as tradition, general conceptions of morality, and family stability."  How do we know that this is not what most of Prop. 8's supporters believe?  Stone insists that religious believers "are not free – not if they are to act as faithful American citizens – to impose their religious views on others", but again, it does not seem to follow from the fact that most of Prop. 8's supporters are religious believers, or even from the fact that their religious beliefs are consonant with Prop. 8, and motivate them to support Prop. 8, that they are trying to "impose their religious views on others."

Let's take it as given that, in a society like ours, citizens should not try to use the law to "impose their religious views on others."  How, exactly, do we decide (a) what counts as an "imposition", and (b) what counts as a distinctly "religious" view?  It seems to me that the question whether Prop. 8 is constitutional, or advisable, or deeply unjust, is not best answered by trying to pin down the nature ("religious" or "moral"?) of the beliefs it represents.

Another Legislative Prayer Controversy...

Recent news -- a 70-year old man was arrested Monday night for interrupting a City Council meeting by praying loudly over the Council's moment of silence (HT: Religion Clause).  It's unclear from the story, but the man seems to have been protesting the Mayor's decision to stop having prayer and to go with a moment of silence.  There are a bunch of examples of legislative prayer being interrupted by dissenters; the most striking example was probably what transpired in the U.S. Senate last year. It was the first time the Senate had a Hindu guest chaplain (Rajan Zed).  When Zed began to pray, protesters from the gallery interrupted him. The whole event is here:

The people that interrupted Zed were arrested and charged; I don't know if they were convicted. 

I discuss the Zed incident (and others) in a piece that's coming out in the spring.  The piece addresses the history of legislative prayer in this country; my thesis is that legislative prayer is  more controversial and causes more division than some have believed.  I take a bit of an issue with the history provided by the Court in Marsh v. Chambers, and in particular the Court's statement that legislative prayer is "simply a tolerable acknowledgment of beliefs widely held among the people of this country."  I don't think that's an entirely accurate summary of what legislative prayer has meant for this country.   I spend a lot of time discussing Catholicism.  A fury erupted in 1832 when the first Catholic chaplain was elected.  He resigned less than a year later.  And it wasn't until 2000 that we had the next Catholic chaplain.  During that period, particularly in the 1840s and 1850s, some Protestants worked hard to end the chaplaincies altogether on the fear that Catholics would take them over.  As the incident with Zed indicates, what happened to Catholics then seems to be happening to other religious groups now -- a frequent church/state theme these days.  Anyway, the piece is here.  If you happen to read the piece and have comments, do tell me what you think.

The Weird Lineup in Pleasant Grove v. Summum

Following up on an earlier post, oral argument in Summum is today.  Pamela Harris (O'Melveny and Lecturer at Harvard) is arguing for Summum; Jay Sekulow (ACLJ) is arguing for the City. 

But the lineup of amici is striking, and it reveals how weird this case is.  Usually, in church-state cases, there's a pattern.  The left files briefs for one side; the right files briefs for the other; and the federalism people and judicial restraint people file briefs for whatever side federalism and judicial restraint are on (not that they always go together).

But Summum is different.  One might expect that the left would file for Summum, while the right would file for the City.  But that hasn't happened.  The City has 16 amici briefs in its favor; poor Summum has only 2.  (I am reminded of Justice Scalia's maxim that when the amici are stacked in one's side favor, be suspicious.)  And many of the briefs from the traditional left (Americans United, The Baptist Joint Committee, the American Humanists) were filed  "in support of neither party."  So what is all that about?  And what do we make of the Rutherford Institute, a right-wingish public interest group, similar in some respects to the ACLJ, filing on Summum's behalf?  What is going on?

What makes Summum so much fun is that it crosses up the usual party lines.  The right has a natural sympathy with Summum's claim here.  For years, they've argued (sucessfully in cases from Widmar to Good News) that it's unconstitutional to exclude religious voices from the public square.  The left doesn't agree, sometimes itself relying on the government-speech doctrine to say that the government can shape its own speech the way it wants. 

Take legislative prayer, for example.  There are a number of modern cases where speakers are alleging constitutional rights to give "sectarian" prayers.  Their claims have some natural force -- if the government requires all prayers to be nonsectarian, it by necessity has to exclude people who would give sectarian prayers.  This means that people who are religiously obligated to pray to Jesus or Allah are simply out.  That's discrimination -- and the right argues that it's unconstitutional.  The left tends to see speakers as simply having no rights in the matter.  The left sees speakers in legislative prayer cases the way the City sees Summum -- as interlopers with no constitutional rights to come in and upset the apple cart.   The Rutherford Institute actually has a cert petition pending in one of these cases.  The institute filed it on behalf of a city councilmen who claimed a constitutional right to refer to Jesus Christ in his legislative prayers.  When Summum (probably) loses, the resulting decision will likely bury the councilman's claim.  That's, in part, what the Rutherford Institute is concerned about. 

So Summum will likely lose.  And its loss looks on the surface, to be a loss for the left.  But I am not so sure it is.  My guess -- and it's only, of course, just a guess -- is that it's Jay Sekulow and the ACLJ that will be the ones really complaining about Summum in years to come.

All for now; more later.  I can't wait for the transcripts.

Pleasant Grove City v. Summum

It's been a quiet year for law-and-religion cases at the Supreme Court -- no Free Exercise cases, no Establishment Clause cases, nothing about the meaning of the various federal statutes addressing religious exercise (RFRA, RLUIPA, etc).

The closest thing we have is Pleasant Grove City v. Summum. Summum is a sort of follow-up to Van Orden v. Perry, which held that some government-sponsored Ten Commandments displays were constitutional. Summum was brought by a religious group that wanted to put up its own version of the Ten Commandments (the Seven Aphorisms, which they claim is what God really gave Moses) in a city park that already had a Ten Commandments display (one of a more traditional sort). In the Tenth Circuit, Summum won on its Free Speech claim; the Tenth Circuit found that the city park was a traditional public forum from which the plaintiff could only be excluded upon the showing of a compelling interest. On Wednesday, the Supreme Court will hear oral argument. And an interesting case it will be...

The case involves the government-speech doctrine. The First Amendment forbids government from discriminating against private speech, but it allows the government itself to say what it wants (that's the part that's known as the government-speech doctrine). So this case seems to boil down to whether the Ten Commandments display currently in the park -- which was donated to the City by the Fraternal Order of Eagles in 1971 -- is private or government speech. If it's private speech, Summum is being discriminated against, and it wins. But if it's government speech, Summum loses. (It could also be a hybrid of both governmental and private speech, but I won't go there in this post - and I don't think the Court will need to either.) So anyway, that's what the parties disagree about. Summum conceptualizes the existing Ten Commandments' display as speech of the Eagles; the City emphasizes its own role in approving and maintaining the display.

I think the smart money is on Summum losing, despite their superlative counsel -- the reasons why are perhaps best spelled out in Judge McConnell's dissent from denial of rehearing en banc. It's not that the plaintiffs are wrong, but I don't know if their approach will coincide with that of the Court.

There's a lot to say about Summum. (It will mean a great deal for legislative prayer, and I'll return to that in a bit.) But for right now, I just want to say something about the government-speech doctrine. The rationale behind it -- the reason why government is generally allowed to say what it wants -- lies in the idea of democratic accountability. If you don't like what the government says about, say, beef advertising, you have a remedy. You can vote the relevant government officials out of office. Summum's brief (cited to above) discusses this rationale a bit (see pgs. 37-39 of its brief). It talks about how the City's role in approving displays and the standards it was using were quite opaque. Thus, Summum argues, there's no democratic accountability here, and no justification to give the City the deference provided by the government-speech doctrine. That argument makes a great deal of sense.

But we shouldn't overlook or underestimate how bizarre it is, in general, to apply the government-speech doctrine here. The government-speech doctrine maybe works fine for matters relating to beef, but not so much with matters of religion. Telling Summum that its remedy lies in winning some elections really just leaves Summum without any remedy at all -- it returns Summum to seek redress in the same political process that treated it unequally in the first place. And it is deeply inconsistent with the Court's usual statements about religious liberty -- it turns on its head the Court's famous and longstanding maxim that matters of religion "may not be submitted to vote; they depend on the outcome of no elections." (And there's also the fact that winning elections would probably not do Summum any good anyway -- the existing Ten Commandments display in the city park may be constitutional under Van Orden v. Perry, but their Seven Aphorisms display would likely still be unconstitutional under McCreary County.)

To me, this case illustrates one of the core dangers with allowing the government to speak religiously -- it leads inevitably to a natural and unenviable political fight over what the government's religion will be and who will get to decide the issue. As I'll talk about later, that's exactly what's going on in these legislative prayer cases: Summum is to Van Orden as Pelphrey is to Marsh. But that will have to wait for a subsequent post.

Churches, Tax-Exempt Status, and Michelle Obama

So Nate Oman won't answer her calls.  And now Americans United has asked the IRS to investigate a church convention because of her appearance there.  Apparently, Michelle Obama spoke before the General Baptist State Convention of North Carolina at the end of October.  AU's letter to the IRS, available here, talks about how her appearance "took on the trappings of a campaign rally" and discusses how she "promoted her husband's candidacy and appealed for votes."  Will the IRS take it further...

Pelphrey v. Cobb County: The Newest Round of Legislative Prayer Battles

I've been doing a bit of academic writing about legislative prayer lately, and couldn't resist a short post on the most recent legislative prayer case -- the Eleventh Circuit's decision in Pelphrey v. Cobb County.   It is huge on both of the two major doctrinal issues -- first, whether legislative prayer can be "sectarian" in the sense of using identifiably denominational language (i.e., words like "Jesus" and "Allah"), and second, whether government can pick and choose among prayergivers on the basis of their religious affiliations.   The Eleventh Circuit said yes to #1, and no to #2.  So going forward, Cobb County can have sectarian prayer, but it has to stop having its clerk weed out Islamic, Jewish, Mormon, and Jehovah Witness prayergivers.   (No joke there: The county clerk located prospective prayergivers by going through the phone book.   Her phone book was apparently turned over in discovery, and she had crossed out a number of sections, including "Churches-Islamic," "Churches-Jehovah's Witnesses," "Churches-Jewish," and "Churches-Latter Day Saints."  Those groups just didn't get called.)

So Pelphrey means that there are now two circuit splits on legislative prayer issues.  The Fourth Circuit earlier came to the opposite conclusions on both doctrinal issues -- it held that sectarian prayers are flatly unconstitutional, and that government can indeed select prayergivers by religious affiliations.   (That latter point was made in a startling case where a Wiccan got a letter in the mail saying that she wouldn't be allowed to pray because, well, she was a Wiccan.)  End result: Both the appeal and the cross-appeal here have arguably certworthy issues to raise.  Very interesting times....

Same-Sex Marriage and Young Evangelicals

With Florida's Proposition 2,  California's Proposition 8, and Arizona's Proposition 102, my attention was caught by some recent polling data about young evangelicals' position on the subject.  According to this study commissioned by Religion & Ethics NewsWeekly, 26% of young white evangelical Christians support same-sex marriage, and 58% of them support either civil unions or same-sex marriage.   I was a little surprised by how high those numbers were.  Young evangelicals were also noticeably different from older ones in their support of the Republican party -- they were less likely to favor McCain, more likely to have negative impressions of Palin, and more likely to be disenchanted with Bush.  But there was one area covered by the poll where they were solidly in line with older evangelicals -- abortion.

Some thoughts on Greenawalt, judicial review, and underenforcement

As Paul was kind enough to mention, Notre Dame Law School hosted a roundtable conference last week dedicated to Volume II of Kent Greenawalt's "Religion and the Constitution."  (I really like this format, by the way:  No need to worry about having an audience for the various panels -- especially the dreaded last one -- and less of a problem of presentations passing like ships in the night.)

Anyway, my own contribution (we all did short, 3-5 page "admission ticket" reflections on the book) was inspired (I think) by a mix of Thayer, Waldron, Fallon, Berman, and others.  In a nutshell, my reaction to "Kent's accomplishment in dealing in a characteristically sensitive and careful manner with a vast and complicated subject" was, among other things, to wonder if we shouldn't just give up on judicial enforcement of the no-establishment norm, outside the heartland "coercion" cases (which, I would think, Free Exercise can take care of anyway) and entanglement and church-autonomy disputes.  (ed.  Who says that's the "heartland"?  rg:  Me, I guess.)  We could come up with some clear rules -- going, in other words, in the opposite direction Kent takes us -- and even err on the side, perhaps, of over-enforcement in this heartland, where individual and institutional liberties are clearly at stake, and then leave -- as, I suppose, Noah Feldman has suggested -- most of the endorsement and even secular-purpose fights to the political process.

This admittedly tentative suggestion -- I reserve the right to retreat, sniffling, in defeat -- is prompted not so much by a strong view that only the endorsement and secular-purpose fights don't implicate non-establishment values and traditions, but instead by a sense that, in a world where we cannot all be Greenawalts, why should judges bother trying to enforce the full extent of the Clause's meaning -- or, more pointedly, why should we let them decide?  Not an original thought, of course, but it's the one I was turning over most during the conference.  See, by the way, Jeremy Waldron's "Core of the Case Against Judicial Review", here.

And now for something completely different . . .

Jonah has the whole financial-crisis thing well in hand, it seems -- lucky for me, since all I have to offer is (a) I doubt Sarkozy's right; (b) I doubt Sen. McCain is more to blame than, say, Rep. Frank; and (c) I'm glad the Dow is up today -- and so I thought I'd register my regret that the intrusion of Serious Events overshadowed the news (or, maybe, "newslet") that I'd been anticipating for several weeks, i.e., "Pulpit Freedom Day" (link).

Anyway, the Washington Post reports, here, more than 30 ministers this past Sunday (intentionally) "[d]ef[ied] a federal law that prohibits U.S. clergy from endorsing political candidates from the pulpit."  (Paul Caron has more, typically thorough, coverage here; I blogged about this general matter a few weeks ago, here; and my colleague, Lloyd Mayer, has a good paper on the religious-freedom issues here.)

So, what will the I.R.S. do?  Stay tuned . . . . 

Electing Faith

Alas, this is a post hoc post, as it were.  But I want to thank the wonderful student organizers of today's symposium at Boston College Law School, Electing Faith: The Intersection of Law and Religion in Politics Around the World, for a terrific day.  I think a splendid time was had by all, and I'd especially like to thank my co-panelists, Lloyd Mayer of Notre Dame and Mark Scarberry of Pepperdine, and the moderator, Fr. Greg Kalscheur, for a stimulating talk on religion in American politics.  (Sorry for the absence of the usual links to bios etc., but my hotel computer seems to be eating them for dinner.)  My talk was somewhat more timely than I'd intended: it was a comparison of the remarks of three presidential candidates on the relationship between religion and politics, and one of them happened to be Barack Obama.  (The others were JFK, natch, and Romney.)  I wasn't psychic: I was going on the basis of his 2006 speech, not today's, which I haven't read or watched yet.  In any event, a fine discussion, and thanks to all -- most particularly the students and faculty at BC for their hospitality.  I think the talks will be available online at some point and I'll certainly link to them when they are so you can laugh at me from the comfort of your own home.   

(Litigation) life imitates Prawfs? More on the Blaine Amendments

A few days ago (see below for links), some of us had a discussion here at Prawfs about, among other things, the Blaine Amendments and federalism.  Then, I received this notice from the religious-liberty litigators at the Becket Fund:

Friday, March 14, the Becket Fund for Religious Liberty is scheduled to present oral argument in St. Louis, MO, in support of Dan and Amy Pucket and their two children who were kicked off of Hot Springs, South Dakota school buses because they attended a religious school.

"The Supreme Court has said that the Blaine Amendments were 'born of bigotry' and should be 'buried now.'  It's time for the states to get out their shovels and start digging.  It is unconscionable that governments are still enforcing discriminatory nineteenth century laws against people of faith," said Roger Severino, legal counsel at the Becket Fund.

Severino will be presenting the argument for the Puckets before the federal 8^th Circuit Court of Appeals. The Washington-based Becket Fund is a public interest law firm protecting the free expression of all religious traditions.  It is nonprofit, nonpartisan, and interfaith.

The case of Pucket v. Rounds concerns the right of the Pucket children to be bused from their rural home to a Lutheran elementary school. The state refused citing South Dakota's Blaine Amendments. The Blaine Amendments were passed at the height of
nativist anti-Catholic agitation in the 1880s and are used today to bar religiously-affiliated organizations of all sorts from receiving any form of government aid in South Dakota, and dozens of other states.

Prof. Friedman has a link to the oral argument, here.  Here is the Becket Fund's litigation backgrounder on the case.  And, for some earlier discussion among Rick Hills, me, and others, on the Blaine Amendments, judicial review, and federalism, see these posts and the attached comments.

For Our Hanover, New Hampshire-Area Readers...

I'll be speaking later today at a neat-looking conference at Dartmouth College co-sponsored by the Ford Foundation, titled "The Gaze & the Veil: Surveillance and the Legacies of Orientalism." My topic, specifically, is "Hamdan v. Rumsfeld and the Marginalization of Individual Rights," a paper to which I've alluded before, and about which I hope to blog more shortly.

In the meantime, it's frickin' cold here! When I got on the plane this morning, I almost got off when the pilot said it was -12 at our destination (Lebanon Municipal Airport). Fortunately, by the time we landed, it had "warmed up" to -10.

At least there's EBA's!!!

The Archbishop and Shari'a

In a recent interview, Rowan Williams, the Archbishop of Canterbury, explained his view that, in the interest of "social cohesion", certain aspects of Shari'a, or Islamic law, should be incorporated into British law.  (The suggestion prompted Ruth Gledhill, in The Times, to ask, "Has the Archbishop Gone Bonkers?").  Well, has he?  Or, are his remarks better understood as a cautious and thoughtful reminder about the importance of legal pluralism?  Or, as something else?  What do people think?

In his interview, he elaborated:

It seem unavoidable and indeed as a matter of fact certain provision of Sharia are already recognised in our society and under our law; so it's not as if we're bringing in an alien and rival system; we already have in this country a number of situations in which the law the internal law of religious communities is recognised by the law of the land as justified conscientious objections in certain circumstances in providing certain kinds of social relations, so I think we need to look at this with a clearer eye and not imagine either we know exactly what we mean by Sharia and not just associate it with what we read about Saudi Arabia or wherever. . . .

Commenting on the reaction that such an incorporation is inconsistent with liberalism, he said:

[A] lot of what's written suggests that the ideal situation is one in which there is one law and only one law for everybody; now that principle that there's one law for everybody is an important pillar of our social identity as a Western liberal democracy, but I think it's a misunderstanding to suppose that that means people don't have other affiliations, other loyalties which shape and dictate how they behave in society and the law needs to take some account of that, so an approach to law which simply said, 'There is one law for everybody and that is all there is to be said, and anything else that commands your loyalty or your allegiance is completely irrelevant in the processes of the courts'. I think that's a bit of a danger.

I tend to be sympathetic to the claim that, generally speaking, genuine "social cohesion" is better achieved through pluralism than through an insistence that all sectors of society honor and enforce the (usually liberal) rules that we impose on state action.  Is this all that the Archbishop is saying?  Or, do his remarks suggest a capitulation that goes beyond pluralism?

"The Things that are not Caesar's"

Here's more information about a conference -- sponsored by The Federalist Society -- on religious freedom and church-autonomy, that might be of interest to Prawfs readers.  The invited presenters include John Garvey, Nick Wolterstorff, Chip Lupu, Bob Tuttle, Doug Laycock, Tom Berg, and others.   Here's a summary of the agenda:

Church autonomy issues are at the forefront of contemporary debates in church/state law.  Such issues arise whenever the government seeks to impose a regulatory burden on a church or any religious organization.  Often the regulatory burden comes in the form of generally applicable legislation that is facially neutral with respect to religion.  The regulation may also take place through developments in the common law, such as claims sounding in tort, contract, trust, or real property.

Some of the pressing topics in the area of church autonomy include ministerial exceptions to employment discrimination claims, IRS tax exempt status and political speech, unconstitutional conditions on public benefits, and bankruptcy litigation.  An older and still important line of cases deals with intra-church disputes in which two factions litigate ownership of church property.  Finally, there is the matter of tort claims against a church for clergy sexual abuse, a particularly difficult area that has arguably eroded the scope of church autonomy in other contexts.

"Religion and the Constitution" at Princeton

If you are in the area, consider coming to this conference, on "The Contributions of William H. Rehnquist to Constitutional Jurisprudence", tomorrow at Princeton.  The conference is co-sponsored by the James Madison Program there and by the Program in Law and Public Affairs.  I'll be speaking on "Religion and the Constitution"; Kent Greenawalt and Donald Drakeman will be responding.  There are also panels on Federalism and Constitutional Criminal Procedure.

The Giants, Carnival, and Antinomianism

It's good to be back on Prawfsblawg -- thanks to Dan & Co. for inviting me back. I'm a visiting professor at BU law school, teaching law & religion this semester, and a Ph.D candidate in Jewish Thought at Hebrew University. I'm also, like one of my fellow bloggers this month, a lifelong Giants fan who is still in some stage of shock and awe over last night's miracle.

My work these days revolves around antinomianism, and the different reasons people deliberately break the law. Last night, as I celebrated the Giants victory in Union Square with a few hundred other fans, I was reminded of one of the simplest: because of the sheer joy of anarchy, the release of carnival. As many scholars have explored, mostly following the lead of Mikhail Bahktin, European carnivals were times at which all order was deliberately overturned. Structures of gender, class, and religion were all inverted -- an act which, if nothing else, proves that pre-modern and early modern Europeans were quite aware of those structures as structures, contrary to the claims of some naive conservatives today. Social theorists differ on what carnival accomplished. Some believe it was a kind of release valve, actually perpetuating power structures by giving the disadvantaged a relatively harmless way to blow off steam. Others see them as subversive, noting that many authorities tried, but failed, to forbid them.

Last night in Union Square was not so antinomian, but it was a bit. Revelers charged out onto 14th street, stopping traffic -- it reminded me of the Critical Mass bike rides, which do the same thing once a month. A very enthusiastic garbage truck driver, initially stopped in traffic, ended up staying put for half an hour or so, honking his loud horn in the tat... tat... tat-tat-tat rhythm New York sports fans know very well. People climbed up on top of the garbage truck, danced on the hood and the roof of the cab, swung from the poles the garbage workers usually hold onto, banged on the side. (Full disclosure: I banged on the side too. Fun!) It was joyous, not least because the ordinary rules were suspended. The traffic would just have to wait. (Thinking about it, this antinomianism reflects the Giants' victory itself, which surely ran counter to most everyone's expectations of what ought to happen. The game itself was carnival.)

Eventually, of course, the cops came...

Eventually, of course, the cops came and disbursed the crowd.  Thankfully, I didn't see any violence, although there was clearly the potential for it, with some drunken fans and a whole lot of riotous energy swirling around.  (One darkly funny moment came when one African-American fan chanted at the cops, in the "Let's Go Giants" tune, "Go ahead, beat me up...  I need a lawsuit.")  Then again, I left before it got too messy -- which is why I chose Union Square over Times Square in the first place.

Obviously, it's that energy -- wild, joyful, also somewhat dangerous -- that law is meant to contain.  From our founding myths to present-day realities, law is that which allows us to live together withut killing each other.  Of course, I didn't like being on the side, somehow, of the police officers shouting from inside their cars "clear the road immediately!"  I wonder how much we as law professors, by inculcating a certain respect for the law, are spoilsports in the worst sense of the word.  Is the momentum of legal reasoning itself against eros, against Thoreau, against carnival and celebration?  Despite our leather jackets and supposedly cooler demeanors, are we not as distant from the dour, grey flannel suit lawyers as we suppose?

Moreover, since that eros-energy is so close to sexual energy, it's no surprise that any changes in the regulation of sexuality are likened by some conservatives to the very destruction of society itself.  (One of my main areas of interest is the intersection between law, sexuality, and religion.)  Maybe they're right; if this cat (or snake) gets out of the bag, who knows what might result.  

Sure, it's all about balance.  A little Super Bowl celebration, sure; violence or destruction of property no.  But as in all calls for "balance," it's not clear how the line gets drawn, how the balance gets set, and, more importantly, the momentum of "balancing," as we teach law, arguably runs counter to some of the energies of humanity that I, at least, want to celebrate.

Just some antinomian thoughts from a still-glowing Giants fan, suspended between Super Days.

"Separation Anxieties: Church and State"

Dan was nice enough, a few weeks ago, to post about my participation in a "Dan Rather Reports" panel discussion, "Separation Anxieties:  Church and State."  If anyone is interested, here's a link to the video of the program.   (I have to say, having gone to college at an institution that is, architecturally, a Princeton knock-off, that the Princeton campus is just great.)

Does "freedom require[] religion"?

In his "Faith in America" speech, Gov. Mitt Romney said, among other things:

Freedom requires religion just as religion requires freedom. Freedom opens the windows of the soul so that man can discover his most profound beliefs and commune with God. Freedom and religion endure together, or perish alone.

Is this true?  Over at Balkinization, Jack Balkin says that this statement (and some others) in the speech "strongly identify Americans and Americanism with belief in God."  Is this true?

For starters, it is (obviously) not the case that only those persons who believe in God (or who, in Gov. Romney's words, "believe that Jesus Christ is the Son of God and the Savior of mankind") are or can be good Americans.  It is certainly not the case that only such persons desire, deserve, and sacrifice for "freedom"; or that only a political community consisting primarily of such persons can be "free."

I do not know exactly what Gov. Romney intended to communicate or claim with the statement that "[f]reedom requires religion".  If he intended to claim with that statement what (it sounds like) Prof. Balkin understands him to have claimed, he was mistaken.  (It seems to me unlikely, though, that Gov. Romney believes that only theists -- or Mormons, for that matter -- are or can be good Americans.)

That said, I believe that it is true -- or, at least, that there is a sense in which it is true -- that political "freedom requires religion."  To be clear:  It is not true that a political community of religious people will, necessarily, be "free"; or that a political community in which most people do not believe in God cannot be "free"; or that religious believers will always cherish, protect, respect, or even understand political freedom.  (I assume that Prof. Balkin and I agree entirely about all this.)

All that said, it seems to me that the existence and maintenance of political freedom does depend on -- i.e., does "require[]" -- "religion" in the sense that political freedom requires not merely constitutional or other legal limits on government power and official action, but also that (and a consensus that) the aims, sphere, authority, purpose, reach, and nature of the state -- of politics -- be limited, by something else.  That is, it is crucial to political freedom that -- in Harold Berman's words -- it not be "for the secular authority alone to decide where its boundaries should be fixed" and that -- as John Courtney Murray put it -- there be "room for the independent exercise of an authority which is not that of the state."  And, it seems to me that "religion" is best, and perhaps only, able to satisfy (even though, of course, it has often failed badly to satisfy) these requirements.  (I tried to flesh out this idea in this short paper.)

What do others think?  Is this, or something like this, plausible?

I cannot emphasize this enough:  To suggest this is not, at all, to say that only religious people understand the value of, and cherish, freedom-under-and-through-limited-government.  None of this is intended to be -- or, objectively, is -- exclusionary, triumphalist, "theocratic", or "Christianist."  Nor am I claiming that these thoughts of mine capture or reflect what Gov. Romney intended to say.  I do not know, exactly, what he indended to say.  (Disclosure:  I am a member the Thompson campaign's Law Professors Committee.)

Should I Be Nonplussed by Howard Dean?

In this space a while back, I wrote a post entitled "Should I Be Offended by Ann Coulter?"  It discussed Coulter's apparent assertion that her perfect world would be both all-Republican and all-Christian; she added that Jews were "unperfected" because they denied the divinity of Christ, and suggested that everyone should become Christians.  Coulter's remark recalled the statement of then-candidate Bush that the acceptance of Christ is the sole route to heaven -- a remark that was somewhat misconstrued and misreported, but that occasioned complaints then and still does.  I wrote that Coulter could be criticized on a number of levels, but that "simply to bear witness on a fundamental disagreement about matters of faith is not, I think, offensive in and of itself."  I would say the same thing about Bush's statement about salvation.

All of this comes to mind because Eugene links on the VC today to a report by the Jewish Telegraph Agency on a speech by DNC chair Howard Dean to an assembly of Jewish leaders, in which Dean said:

"This country is not a theocracy . . . .  There are fundamental differences between the Republican Party and the Democratic Party.  The Democratic Party believes that everybody in this room ought to be comfortable being an American Jew, not just an American; that there are no bars to heaven for anybody; that we are not a one-religion nation; and that no child or member of a football team ought to be able to cringe at the last line of a prayer before going onto the field."

Eugene's own comments are worth reading.  Eugene points out that many Democrats do believe  that belief in Christ, or in Allah, or in some other religious doctrine, is necessary for salvation.  He says that Dean "can no more make assurances about the Democratic Party's stand on salvation through works than he can about its stand on transsubstantiation or Papal infallibility."

My take on this is similar but somewhat different in focus.  Of course, the Democratic Party qua political party could adopt a particular religious viewpoint if it wanted, by, for instance, enshrining it in the party platform.  In the real world, however, it would not, and such a plan would be ignored even if it were adopted, so Eugene's conclusion is correct, practically speaking.  Mostly, though, I just find Dean's remarks strange and close to incoherent.  It's not just that plenty of Democrats believe that there are specific bars to heaven for non-believers -- that you have to acknowledge belief in the right god to enter into heaven.  Even if we had a more ecumenical view of the turnstiles at the Pearly Gates, though, surely many if not most religionists (including religionist Democrats) believe there are other potential bars to heaven -- for the wicked, the unrepentant, and so on.

Beyond this, and keeping in mind that Dean was talking to a Jewish audience, one must acknowledge that Dean's Democratic theology is simply inaccessible to some of the very audience he was addressing.  Many Jews don't believe in an afterlife at all, and others don't believe in heaven as such.  What could his statements possibly mean to them?  Would they not be either gibberish or an affront?  For other Jews, heaven exists and is available to people of all faiths.  (For quick-and-dirty Internet info, see this.)  Dean's remarks would indeed resonate with them.  But does that mean that Dean is, in effect, adopting a particularly and peculiarly Jewish theology on behalf of his party?  If so -- or even if Dean is simply shopping a similar, but not specifically Jewish, view of heaven -- shouldn't those Democrats, whether Jewish or otherwise, who adopt a different view of the existence of heaven and the preconditions for salvation be offended by his presumption?

Of course, we can understand what Dean is really trying to say: that the Democratic Party sets no religious preconditions on entry into the democratic sphere, and values all faiths equally.  (I might add that this boilerplate applies equally in principle and, generally, in practice to the Republican Party as well.)  But by trying to merge statements about pluralism in the world, and in ordinary politics, with statements about theology, Dean cooks up a dog's breakfast.  In a religiously plural world, as I wrote earlier, everyone should be equally welcome at the table; but that hardly means we are all obliged to share the view that we are also equally entitled to enter into heaven.  There is nothing wrong, from a secular viewpoint, with holding the belief that, say, acceptance of Jesus is necessary to be saved; or that good works are necessary to be saved; or that belonging to some faith or other is necessary -- although it is true that not all these views can be accurate theologically and one can disagree with them on that basis.  Secular politics can and should demand that we live together and reason together, but it cannot demand that we give up fundamental disagreements of this sort.  Certainly the Democratic Party's writ runs out long before that point.

One last question: Should I, or you, be any more or less offended by Dean's remarks than I was by Coulter's?  I might or might not prefer his theology to hers, or vice versa; but are they really that different?  To the extent that Coulter was offensive because she was trying to impose a particular theological view on the world and on her party, is Dean acting any differently?  To be sure, Coulter is a deliberate provocateuse, and we might say that one difference between the two individuals is that Coulter does not want to shut up, while Dean can't seem to shut up.  Certainly she is a more piquant speaker, and we might find her more objectionable for that reason.  But in substance, aren't their remarks equally offensive?  Aren't they both trying to tell us who gets into heaven, even if Dean's answer happens to be "everyone?"       

JFK's Houston speech

CSPAN's web site has a link to John F. Kennedy's September 1960 speech to ministers in Houston about his Catholicism.  It's fascinating, especially the Q & A section, which is pretty bruising. 

Relatedly, here's a news story regarding Mitt Romney's decision (for now, anyway) not to give an LDS version of "the Speech."

The Catholic Recipe for Hamburgers

In blogospheric terms, the discussion of Justice Scalia's statement that there is no such thing as a Catholic judge is long over, so it's a little late to weigh in.  Moreover, I agree generally with Rick's pithy pronouncement on the subject, which he fills in on MoJ and in the comments to his post, so it would seem there is little to add.  But I want to add two comments.  The first is raised by a quote offered up by Judge William Pryor in his article, The Religious Faith and Judicial Duty of an American Catholic Judge, 24 Yale L. & Pol'y Rev. 347 (2006), which is well worth reading.  In his article, Judge Pryor offers up this quote from the Catholic Catechism:

Human work proceeds directly from persons created in the image of God and called to prolong the work of creation . . . . Work honors the Creator's gifts and the talents received from him.  It can also be redemptive.  By enduring the harship of work in union with Jesus, the carpenter of Nazareth and the one crucified on Calvary, man collaborates in a certain fashion with the Son of God in his redemptive work.  He shows himself to be a disciple of Christ by carrying the cross, daily, in the work he is called to accomplish.  Work can be a means of sanctification and a way of animating earthly realities with the Spirit of Christ.

Obviously, this sentiment does not mandate, or even suggest, a particular jurisprudential view or methodology.  In that sense, a "Catholic Justice" imbued with this belief in work as a duty of faith may be indistinguishable in his or her outward approach or outcome from any other judge; so Scalia is right, in that limited sense, to say there is no such thing as a Catholic Justice.  But in a broader sense, he is wrong: a faithful Catholic Justice brings to his work a sense of the sacredness of all work, of the hope that labor can be a profound and redemptive activity.  Surely that is something distinctive.  "Distinctive," not unique -- it is an outlook that surely is not limited to Catholics, nor, I think, to religious individuals.  But distinctive, nonetheless.

Which leads me to my other comment, and the title for this post.  Justice Scalia said in his remarks that the Catholic faith seems to him to have little effect on his work as a judge, "just as there is no Catholic way to cook a hamburger."  At the risk of straying into an almost self-parodying respect for religion, I take issue with that, and I was disappointed that no one during the first round of discussion of Scalia's comments focused on the mundane act of cooking a hamburger rather than the supposedly exalted act of judging.  Surely the point of a religious life, or of any effort to live a serious and thoughtful life, is that any and every action can be imbued with purpose, meaning, or at least a sense of the fullness of the moment.  If anything, I think the question whether there is a "Catholic [or other] way to cook a hamburger" -- whether, in less risible terms, it's possible to invest mundane acts with meaning -- is of more importance than the comparatively episodic and ephemeral work of judging. 

   

Is Justice Scalia a "Catholic" judge?

He says no.  I say, "actually, yes."

Voting by the 'Book'

Ramadan draws to a close this week. In the past several days, during this season of sacrifice, I've given considerable thought to the recent comments of John McCain--both his claim that the U.S. is a Christian country and his expressed discomfort with the thought of a Muslim for president. He feels, he said, that his faith likely offers 'better spiritual guidance' than that of a Muslim.

Such a stance may resonate with candidates who seek to gain the confidence of voters by espousing their religious views. Candidates whose beliefs do not mirror those of the American majority, however, may take a different tack (as did Keith Ellison, whose successful Congressional campaign was decidedly not about his adherence to Islam).

Is religious belief a proper decisive factor in determining for whom to vote? Those who answer this question in the affirmative may do so as part of a belief system that equates morality, ethical behaviour, and strength of character, for example, with religious adherence. I am not convinced, however, that such a consideration should be a driving force behind candidate selection in the voting booth (and not only because our moral compass may be a product of evolution). I may be old-fashioned, but I vote based on whether a candidate will uphold the Constitution, and whether, in the case of a president, any Supreme Court justice appointed will refrain from serving as a facilitator for an ideological agenda. And I am curious: If one is moved to vote for a candidate based on religious identity, what is it about that identity that indicates the candidate's willingness to perform, once elected, in a manner Constitutionally mandated?

If one refutes the notion that having a largely Christian population does not mean that a country is in fact Christian, then the response to the question posed above the break is pretty simple. But what of those Americans who are not Christian, but tend to vote with (to the extent possible) the candidates' claimed religion in mind? And what of those--nonbelievers or not--who wish to avoid consideration of a candidate's beliefs, but are nevertheless inundated with the matter?

Of course, this all presupposes that one has made it to the voting booth in the first place--a potentially faulty assumption given the uncertain future of voter ID laws. But more on that in a future post.

Marci Hamilton on the Red Mass

In a column on FindLaw earlier this week, Professor Marci Hamilton wrote about this year's Red Mass.  This is a traditional event in many places, in which the Catholic Church, as that redoubtable source of Catholic wisdom -- Wikipedia -- puts it, "requests guidance from the Holy Spirit for all who seek justice, and offers the opportunity to reflect on what Catholics believe is the God-given power and responsibility of all in the legal profession."  I've attended the Red Mass in DC a couple of times, and it is, for good or ill, a star-studded event.  Hamilton notes that this year's audience included six Supreme Court Justices -- Roberts, Scalia, Thomas, Kennedy, and Alito, all Catholics, and Justice Breyer, who is Jewish.  At this year's Red Mass, according to one report, the homily "alluded to such issues as abortion, euthanasia, cloning and human sexuality."

Hamilton's column is careful.  She says the Justices "have the right to worship as they choose"; that the archbishop who delivered the homily had every right to "preach his Church's beliefs"; and that "[n]o one is asking the Justices to abandon their faith -- least of all myself."  But Hamilton says "there is reason to feel some unease with respect to their presence at the event."  She suggests that the archbishop's description of the event as an opportunity "to rejoice in a mutually enriching alliance between religion, morality and democracy" meant "that we should rejoice in an alliance between a particular religious denomination, Catholicism, and the government."  She suggests that recent discussion of the relevance of the number of Catholics on the Court "should have put the Justices on notice to tread carefully when it comes to religiously-freighted issues that they have the duty to resolve from a secular, law-based point of view."  And she says that because the Justices have the burden of avoiding even the appearance of impropriety, "their presence at the Mass and its content still should raise questiosn for any number of Americans."  She closes by suggesting that the Justices should "provide the public with greater reassurance that they view their judicial obligations as distinct from their religious obligations.  Taking a pass on the Red Mass might well have done just that."

Is Professor Hamilton right to be concerned?  I think not.   

Part of the problem, I think, is that in some cases Hamilton misreads the homilist, and the meaning of the Red Mass.  Consider again the statement that we should "rejoice in a mutually enriching alliance between religion, morality and democracy," which Hamilton takes as signifying "an alliance between a particular religious denomination, Catholicism, and the government."  Well, it is an alliance of sorts, but not one of merger or capture; and I think it is not one the archbishop is urging on the Justices and other assembled legal professionals, but rather one that he believes is immanent in their work.  To do justice, or to seek to do so, is one among many ways of being called to live well and decently in a world that is imbued with God's presence.  And although the archbishop surely believes that the true path to understanding that presence lies in the Catholic Church, I think he, or many Catholics, also believe that all of us who work in the justice system share in a worthy calling, and all of us deserve prayers that we should do this work with strength and conviction.  In that sense, I'm not sure that Hamilton is right to characterize the Red Mass as "a public affair intended to reinforce the ties between government and the Church" -- although I suspect, having been to this celebrity-rich event a couple of times, that some individuals sometimes take this mistaken lesson from the ceremony.  Rather, I see it as an affair intended to acknowledge the special responsibility of those called to public service or to service to the justice system, to remind them of that responsibility, and to offer them the strength to live up to those responsibilities.

I also think, although she is not entirely clear here, that Hamilton overreads the archbishop's homily as directing these Justices and lawyers to reach particular substantive results in cases involving the hot-button issues he apparently alluded to.  Judges and lawyers have a somewhat unique role in administering our system of law, and their office may not always extend to using their roles to engineer particular results in keeping with the Church's views (or anyone's substantive views).  So I don't think the Justices necessarily understood themselves as being pressed to reach particular results -- although, in fairness, sensitivity to the nuances of the Church's teachings on this point may vary according to the individual homilist.  (I take no position here on whether homilists at Red Masses should tread carefully in discussing particular issues with judges in the audience; I think the most I would say it what I would always say, regardless of the audience -- that one should always speak humbly and with care, and with some thought for the occasion, although without abandoning the heart of one's most deeply held convictions.)

There's a broader point here that bothers, me, though, and that is Hamilton's belief that the Justices are obliged to "provide the public with greater reassurance that they view their judicial obligations as distinct from their religious obligations."  As stated, and at the risk of quibbling, I just don't think that's right.  The Justices, or some of them -- although perhaps this is true of Justice Breyer, too -- attend the mass because they understand that their judicial obligations are not distinct from their religious obligations: that, in faithfully carrying out their judicial obligations, they are, in a deep sense, living out their religious obligations.  For some lawyers, I am sure, the work would lose much of its meaning were it otherwise.  But that is different from saying that their religious obligations are in conflict with their judicial obligations; to the contrary, they may well best understand their religious obligations as demanding that they faithfully and humbly hew closely to their professional obligations as lawyers and judges.

I acknowledge that this is not always a point everyone gets; people may assume that religious judges are obliged to serve their religion over their office, rather than that religious judges serve their faith precisely by honoring the duties of their office.  Perhaps we need to have that conversation more, and more clearly.  But I don't think the Justices need to absent themselves from the Red Mass in the meantime.      

"Are Churches (Just) Like the Boy Scouts?"

Here is a new paper of mine, called "Are Churches (Just) Like the Boy Scouts?", which I presented at a (great) law-and-religion conference last Spring at St. John's.  The paper talks about, among other things, the account provided by Professors Eisgruber and Sager of the church-autonomy principle; the idea of the "Freedom of the Church" (which I've tried to engage in more detail here); and an "institutional approach" to the Religion Clauses, about which Paul Horwitz has written so well (and which is also the subject of a paper I'm doing for the Villanova Law Review.)  Here is the abstract:

What role do religious communities, groups, and associations play – and, what role should they play – in our thinking and conversations about religious freedom and church-state relations? These and related questions – that is, questions about the rights and responsibilities of religious institutions – are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if we want to understand well, and to appreciate, the content and implications of our constitutional commitment to religious liberty, we need to broaden our focus, and to ask, as Professors Lupu and Tuttle have put it, about the “distinctive place of religious entities in our constitutional order.” Are religious institutions special? May and should they be treated specially?  If so, how?  Why?

For some other, in-places-different views on the subject, see this new paper by Cass Sunstein, "On the Tension Between Sex Eq uality and Religious Freedom."

Koppelman on "Religion As Conversation-Starter"

May I commend a short but incisive post by Andrew Koppelman over at Balkinization.  Koppelman, who has published wonderful articles on law and religion among other topics, questions the widely shared norm of public reason that holds that "political discourse must rely on arguments that are not sectarian and can be assessed in terms of commitments that all citizens can share."  Noting the "bitter response" that religious individuals have had to this norm, he asks: "[W]hy did the liberals converge on and keep producing new articulations of a proposal, in the name of social unity and comity, that was so widely received as an insult?"  His answer, in short, is that the norm is related to wider norms of civility in American discourse, in which religion is treated as essentially private and disagreement on expressly religious terms is treated as impolite.  What's his solution?

[T]he norm of politeness needs to be revisited. As soon as A invokes religious reasons for his political position, then it has to be OK for B to challenge those reasons. It may be acrimonious, but at least we’ll be talking about what really divides us (and we’ll avoid the strange theoretical pathologies that have plagued modern liberal theory, though that seems to be a disease mainly confined to the academy). It’s more respectful to just tell each other what we think and talk about it.

I agree with him, and can't resist flacking this paper, in which I argued that religion ought to be a welcome part of public discourse, but that any genuine respect for religion and its role in public discourse compels the conclusion that religion ought to be equally subject to open criticism and attack, just as any other set of public reasons is.  Any rule in which religion is permitted in public discourse but also immunized from criticism fails to accord religion genuine respect.  Like Koppelman, I agree that the light will be worth the heat.

Anyway, read the whole thing.  Some of the comments are chaff, but others provide decent opposing views.  And if you like these sorts of discussions, note that Koppelman's article is a tip of the hat to a wonderful piece by the late Richard Rorty, "Religion as Conversation Stopper." 

 

Chicken Soup For the VC Soul

The other day Eugene Volokh had a post discussing news coverage of the President's recent speech at the National Hispanic Prayer Breakfast.  A typical passage -- this one from the Washington Post -- ran: "Casting his appeal in religious terms, Bush said, 'We must meet our moral obligation to treat newcomers with decency and show compassion to the vulnerable and exploited, because we're called to answer both the demands of justice and the call for mercy.'"  Volokh asked:  "Is it really quite accurate to describe this as 'us[ing] religious terms'? I would think that nonreligious people would rightly bristle at the implication [that] 'moral,' 'decency,' 'compassion,' 'justice,' or 'mercy' are inherently 'religious terms.'"

Today Eugene writes about the Vatican's issuance of a document discussing "Guidelines for the Pastoral Care of the Road," which, among other, more stereotypically "religious" issues, such as the pastoral care of street children, addressess, yes, questions such as road and highway safety.  Eugene suggests that this seems "a little more mundane than I'd expect," although he adds, "[M]aybe I'm taking too narrow a view of the role of the spiritual in daily life."

I don't mean to pick on Eugene.  Of course the President's remarks would seem unremarkable if uttered by a non-religious person, so that the reporters' description seems forced.  And of course no one expects the Vatican to address road safety at length.  (Of course, that may be why it did so!  Remember, surprise is among its chief weapons.)  So I get what he's saying.  But it seems to me that he may indeed be taking too narrow a view of the role of the spiritual in daily life.  It is entirely accurate (although, as I'll suggest in a moment, somewhat misleading) to describe the President as having used religious terms in his speech, and terms such as "moral," "compassion," and "mercy" are inherently religious terms.  For that matter, in a world in which everything is imbued with God's presence, if you see it that way -- and I think both the President and the Vatican do -- matters such as "road safety" are also inherently religious!  In a sense, whether something, or everything, is "mundane" or "inherently religious" depends on your perspective, and I take it that to the Vatican very little is mundane -- not even road safety.

Again, I'm not trying to pick a fight with Eugene.  I get what he's saying, and of course there's something to it.  (Although I think his point about the Prayer Breakfast coverage could be restated more accurately: the words the President used are inherently religious; they're just not exclusively or uniquely religous.)  I just think his two posts are complementary, in ways I wasn't sure he recognized.  They rather put me in mind of these lines from Franny and Zooey, which, as a recipient of many a bowl of holy chicken soup, I have always loved:

"If it's the religious life you want, you ought to know right now that you're missing out on every single goddam religious action that's going on around this house. You don't even have sense enough to drink when somebody brings you a cup of consecrated chicken soup—which is the only kind of chicken soup Bessie ever brings to anybody around this madhouse."

Islamic Law and Public Reason

Mohammad Fadel recently made two outstanding articles available discussing the compatibility of Islamic law with a Rawlsian conception of political liberalism that is based on the idea of public reason. In The True, the Good and the Reasonable, Fadel shows how the constitutional essentials of a liberal state can be endorsed from within a comprehensive Islamic view of the good; especially in religiously diverse societies, such a view can contribute to an overlapping consensus supporting that basic structure. Fadel argues that freedom of conscience is necessary to accommodate long-standing epistemological skepticism regarding our ability to know the content of divine law as well as to protect free theological inquiry and the doctrinal pluralism that inevitably results. Moreover, Fadel argues that juridical concepts such as the universal human goods and ‘public policy’ should be understood as intellectual precursors to the idea of public reason.

Fadel’s presentation is learned and important, though there are a few junctures at which I would take the discussion in a different direction. Fadel says that his analysis is aimed at Western countries with significant Muslim populations and not at Muslim-majority jurisdictions adapting Islamic teaching to modern conditions. I was surprised that Fadel would cast his piece in this light without engaging more with the old and vast literature devoted to the propriety of living as a Muslim in non-Muslim lands. Alternatively, his analysis seems very relevant to secular regimes in the Muslim world itself whose legitimacy is challenged by religious conservatives as well as to Muslim-majority countries which contain substantial intra- and inter-religious diversity. More broadly, I wonder whether Fadel has selected the right theoretical framework within which to analyze the issue. It seems to me that the conceptual structure of Islamic political thought is not liberal but republican, built around ideals of nondomination, civic virtue, and the public good. Republican and liberal regimes tend to converge on similar constitutional structures—separation of powers, constitutional constraints, public accountability—so if one can reflectively endorse the former one can generally endorse the latter as well. But there are important conceptual differences between the two political theories, and if one theory provides a more direct explanation of the compatibility of Islamic teaching with constitutional democracy then those differences are worth exploring.

In Public Reason as a Strategy for Principled Reconciliation, Fadel argues that, to the extent that rules of Islamic law cannot be justified through public reason, the state may require or prohibit what Islamic law permits, or permit what Islamic law requires or forbids, without substantially infringing on religious freedom. Religious freedom does impose limits, however, on the state’s ability to require what Islamic law forbids or forbid what Islamic law requires. Requirements of Islamic law that are unsupported by public reason can be applied to those who voluntarily submit to its norms, for instance through alternative criminal sentencing or a form of ADR for commercial and family disputes. Although I find Fadel’s analysis of the three primary normative modalities— prohibition, permission, obligation—illuminating, I feel he does not give sufficient effect to the distinction among permissible acts between those that are encouraged, discouraged, and neutral from a religious perspective. Say that the beard and the headscarf are encouraged but not required by Islamic teaching or are neutral from a doctrinal perspective but are recognized symbols of religious identity. Legal prohibitions on these expressions of religious belief still seem to infringe rights of religious freedom. By contrast, Fadel argues that polygamy may be prohibited by the state simply because it is not supported by public reason and not required by Islam. Fadel observes that polygamy is permitted but discouraged within Islam, but does so not to justify the legal prohibition but only to point out that polygamy presents a relatively easy case of legally prohibiting what religion merely permits. I think Fadel’s argument would be stronger if he explored the possibility that the justification for legally prohibiting practices that are permitted but not required by religious teachings depends in part on whether those practices are encouraged, discouraged, or neutral within the religion itself. In any case, Fadel’s argument suggests that we cannot adjudicate the compatibility of a legal prohibition with rights of religious freedom without first understanding the normative status of the underlying activity within the religion itself. And adoption of that position by constitutional courts may thrust the judiciary into deeply controversial religious debates.