Wednesday, February 12, 2014
Prof. Alan Brownstein on this Term's church-state cases
Those of us in the First Amendment area know well that Prof. Alan Brownstein (UC-Davis) is among the most thoughtful and insightful -- as well as the most decent and charitable -- scholars now working. He shared with me the following reflection on religious freedom and the different reactions to the church-state cases before the Court this year. As they say, "read the whole thing":
I have been working in the church-state area for 25 years but I don’t think I have ever felt quite as out of synch with my colleagues in the academy as I do this year. Two important church-state cases will be decided by the Supreme Court this term: the Town of Greece case dealing with the offering of state-sponsored prayers before town board meetings and the Hobby Lobby case involving a RFRA challenge to the Affordable Care Act’s contraceptive mandates.
I don’t suggest that either dispute is particularly easy to resolve. But I do think that both cases raise serious religious liberty issues. As a matter of law and a recognition of social reality, I think the plaintiffs in both cases raise serious religious liberty claims that deserve our attention, empathy, and respect. Indeed, I think there are important parallels between the two cases. In particular, some of the arguments raised against the religious liberty claims in each case would apply with roughly equal force in the other case.
Apparently, very few church-state scholars and commentators, including many of my colleagues that I greatly admire and respect, share my perspective. Instead, commentary seems sharply split and polarized on these cases. Generally speaking (and obviously there are exceptions to what I am about to write), most liberal commentators see a significant religious liberty issue in Town of Greece, but are dubious about, if not dismissive of, the plaintiffs’ claims in Hobby Lobby and related cases. Conversely, most conservative commentators see a significant religious liberty issue in Hobby Lobby, but are dubious about, if not dismissive of, the plaintiffs’ claims in Town of Greece. Of course, there may be a good reason why I am odd man out. Maybe I’m just plain wrong to see parallels between these two cases. But I worry that political and cultural polarization is making it harder for all of us to see and appreciate the legitimate concerns of claimants who from one perspective or the other are on the wrong side of the culture war dividing line. And I think the protection of religious liberty is undermined if we only choose to protect it when nothing that we value personally is at stake.
Again, generally speaking, liberals especially value gender equity and see universal access to medical contraceptives as an important public health and woman’s rights concern. For liberals, protecting religious liberty in a situation which even risks the burdening or sacrifice of these interests is hard to do. Conservatives value government sponsored religious activities such as state sponsored prayers during public events. If protecting religious liberty requires placing some limits on such religious activities, conservatives will experience the price of religious freedom in this context as particularly costly. Put simply, if we expect other people to bear what they experience as real and significant costs to protect religious liberty, we have to be prepared to demonstrate that we are willing to accept costs to interests that we value as well. But In Town of Greece, liberals seem willing to protect religious liberty when something they do not value, public prayer, may be burdened, but are disinclined to protect religious liberty in Hobby Lobby. And conservatives are willing to protect the religious liberty of Hobby Lobby, but assign little if any weight to the religious liberty interests of the Town of Greece claimants.
Let me give some specific examples. In vernacular terms, both liberals and conservatives raise an incredulous, “What can they possibly be complaining about” question in one case or the other. In Hobby Lobby, the suggestion seems to be that in the context of the case, there is no reason to think that the plaintiffs’ rights are abridged. If a large corporation is engaged in commerce, it is subject to hundreds of regulations regarding working conditions, hiring, salaries, health plans and retirement plans. The benefit plans it provides to its employees may cover thousands of health and retirement decisions. Being in commerce and employing hundreds or thousands of people means that a lot is going to happen in your business that other people control. That the way the world is and how it has to be. In Town of Greece, the argument is that town board meetings necessarily involve exposure to a lot of expression from both board members and the public. If you attend the meeting, you will have to sit through a lot of speech that you find objectionable. That’s the way the system works. Learn to live with it.
I think the answer here to the “What can they possibly be complaining about” question in both cases is simply that religion is different. A commitment to religious liberty means that burdens relating to religion are evaluated differently than other costs or consequences. A business regulation requiring a business to engage in conduct the owner or manager’s religion prohibits requires a different analysis than other regulatory burdens receive. Having to sit through a state sponsored prayer is different than having to sit through a discussion of the municipal budget. What is key here is that if religious liberty claims deserve attention in one of these contexts, regardless of the way things generally work, religious liberty claims deserve respect in both contexts.
Or consider more focused and sophisticated arguments. Some liberal commentators argue that the burden on religious liberty in cases like Hobby Lobby is too indeterminate to justify requiring the government to take any steps that might alleviate it. For example, an employer objecting on religious grounds to insurance coverage requirements under the Affordable Care Act may decline to continue to offer a health insurance plan to its employees. The employer will have to pay a penalty for doing so but that payment will probably be far less than the savings it incurs by ending employee health care benefits. True, there may be other costs associated with discontinuing employee health insurance coverage. But it is unclear whether and in what circumstances those costs would constitute a substantial economic burden on businesses declining to offer health plans to their employees. Because the economic consequences of declining to offer health plans is indeterminate and may in fact be modest or negligible, courts should not consider claimants like Hobby Lobby to be subject to a substantial burden on their religious liberty.
It is easy to understand, however, why an employer would legitimately worry that terminating the existing health plans it offers its employees might have negative consequences on worker morale and the retention of employees. Most employees would not look kindly on having their existing health plans terminated and being told to purchase insurance through exchanges developed under the Affordable Care Act. I would characterize this argument as questioning whether a risk of adverse consequences constitutes a cognizable burden on religious liberty. The employer does not know what will happen if it protects its religious liberty interests by terminating the health care plans for its employees, but the risk and reason for concern are there. The employer’s worry can hardly be characterized as mere speculation.
I think the claimants in Town of Greece identify very similar risk based burdens on their religious liberty in their coercion arguments. They worry that the town board members they will be petitioning for support or assistance will be alienated by the claimants’ refusal to stand, bow their heads, or otherwise participate in state sponsored prayers at the beginning of the board meeting. Of course, no one knows whether board members will be alienated or whether they will allow their feelings about claimants not participating in the offered prayer, or publicly disassociating themselves from it, to influence the way the board members hear and decide the matters on which the claimants offer public comment. But here again, the risk and reasons for concern are there.
I think significant risk of adverse consequences, that is, reasonable grounds for worrying about adverse consequences, should be understood to burden protected interests. Certainly, the chilling effect arising from the risk of being exposed to penalties from overbroad laws is recognized as constitutionally significant for freedom of speech purposes. But in Hobby Lobby, liberals seem unwilling to accept that indeterminate burdens on religious liberty deserve recognition and justify steps to alleviate them. In Town of Greece, conservatives seem unwilling to accept that indeterminate burdens on religious liberty should be recognized and steps taken to alleviate them. I think the question of whether the risk of adverse consequences should be recognized as substantial burdens on religious liberty should be answered the same way in both cases.
Another criticism of plaintiffs’ claims focuses on arguments about attenuation, perception and attribution. In cases like Hobby Lobby (and perhaps more so in the related cases brought by religious non-profits), claimants are concerned that they will be complicit in sinful behavior. In addition, religious nonprofits in particular are concerned that they will be misperceived as supporting or acquiescing in sinful behavior or that support for such behavior may be attributed to them. These concerns transcend material support and emphasize the expressive dimension of being associated with unacceptable conduct. I think these concerns are captured in the Catholic idea of “scandal.” Liberals dismiss claims based on complicity as being too attenuated. Concerns about misperception are also deemed insignificant since they can be so easily remedied by the religious nonprofit publicly proclaiming its opposition to the conduct at issue.
A similar problem with misperception, indeed I suggest an arguably more powerful example of it, arises in the Town of Greece litigation. Commonly, the prayer giver at the Town of Greece board meetings offered what I call a “we” prayer rather than an “I” prayer. The member of the clergy offering the prayer purported to be speaking to G-d in the name of the audience and the community. Sitting silently by, much less standing or bowing one’s head, while someone claims to be praying in your name creates the perception that you acquiesce or support his doing so. I consider this to be as clear a misperception burden as the concern of religious individuals and institutions that they will be perceived as supporting the use of medical contraceptives or abortion inducing pills when such services are covered by the health care plans they provide to their employees. Accordingly, in my judgment, if either misperception argument deserves to be taken seriously, the misperception arguments in both cases deserve to be taken seriously.
Here, again, liberal commentators who sympathize with the misperception concerns of claimants in Town of Greece seem less concerned with the misperception concerns of claimants in the contraceptive mandate cases. The problem is even more acute for conservatives who recognize misperception and misattribution as a problem in the contraceptive mandate cases but seem unconcerned about the claimants in Town of Greece. In the contraceptive mandate cases, there is no risk of a penalty or adverse consequence if employers very publicly condemn the mandate and express their lack of support for the use of medical contraceptives. Misattribution can be somewhat mitigated by their public rejection of the government’s requirements. In Town of Greece, however, by publicly disassociating oneself from the offered prayers at the town board meeting, dissenters expose themselves to the risk of closed ears to their petitions and adverse decisions on matters before the board. The risk of adverse consequences is increased by their attempts to avoid misperception and misattribution.
I know, of course, that Town of Greece is a constitutional law case and the contraceptive mandate litigation primarily involves statutes and public policy. Thus, one might plausibly argue that town board prayers are constitutional, while also insisting that as a public policy matter they are a bad idea or at least have to be carefully structured in ways to minimize their coercive impact. I don’t see conservatives making this argument, however. They seem to ignore the burden on religious liberty both for constitutional and policy purposes.
I think there are other arguments to support my suggestion that people who take religious liberty seriously should be respectful of plaintiffs’ claims in both Town of Greece and Hobby Lobby (and related contraceptive mandate cases). But this blog post is long enough.
My key point is that we have to work hard at not seeing religious liberty issues through the red and blue prism of contemporary culture wars. Most importantly, we should be careful not to allow our sympathies for interests aligned against particular claims for religious liberty to prevent us from acknowledging and empathizing with plaintiffs whose concerns warrant our respect. Recognizing the reality of the religious liberty concerns asserted by claimants in Town of Greece and Hobby Lobby (and related cases) does not mean that we must agree with the remedy sought in either case. But it does reflect a willingness to take such claims seriously even when we are uncomfortable in doing so.
Thursday, January 30, 2014
The Hobby Lobby amicus briefs
The Becket Fund for Religious Liberty has collected them all, here. There are a bunch, and lots of profs (and prawfs) are in the mix. (I'm on this one, which is a response to the main argument set out in this one.) We'll see!
Friday, January 24, 2014
Steven Smith's "The Rise and Decline of American Religious Freedom"
Oh, happy day . . . my actual copy of Prof. Steven Smith's latest book, The Rise and Decline of American Religious Freedom arrived yesterday. I read it in draft, before, and -- entirely apart from the wonderfully engaging prose -- I think it's a must read for anyone interested in the law-politics-society-faith-religion thing. Here's a bit from the Amazon blurb:
Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.
As Andy Koppelman puts it, on the back cover, this is "one of the most important books on religious liberty in years." (No doubt this was one of the others he had in mind!)
Thursday, December 05, 2013
RFRA, HHS, and Hobby Lobby
I have a short opinion piece in today's Los Angeles Times about the Hobby Lobby case, which the Court has agreed to hear and which involves a RFRA challenge by a for-profit business to the HHS contraception-coverage mandate. (Apologies for the piece's somewhat overwrought headline, which I didn't write!). My basic point is this:
The Religious Freedom Restoration Act reaffirmed an idea that is deeply rooted in America's history and traditions — namely, that politics and policy should respect and, whenever possible, make room for religious commitments and conscientious objections. True, religious liberty is not absolute, and, in a pluralistic society like ours, not all requests for exemptions and accommodations can, or should, be granted. Some religious liberty lawsuits will, and should, fail, but not simply because they involve what happens at work on Monday and not what happens in services on the Sabbath.
I should note that I do not deal in the piece with the argument -- pressed eloquently (natch) in this Slate essay by Nelson Tebbe and Micah Schwartzman -- that it would violate the Establishment Clause to accommodate, under RFRA, an employer like Hobby Lobby. I do not agree that it would, in part for reasons set out by Eugene Volokh here.
Saturday, November 16, 2013
"It was 20 years ago today . . ." (Happy Birthday to RFRA)
My friend and colleage Tom Berg has a post -- the title of which I have ripped off here -- noting that today is the 20th anniversary of the signing into law of RFRA. Here is the post:
On November 16, 1993, President Clinton signed into law the Religious Freedom Restoration Act (RFRA), which requires that the federal government meet the demanding test of showing a compelling interest before it imposes a substantial burden on sincere religious exercise. A recent event at the Newseum in Washington DC commemorated the anniversary and assessed the future of religious freedom in America. A lot has happened in 20 years. A number of states passed their own versions of RFRA; Congress, responding to a Supreme Court decision, applied the same compelling-interest test to state and local zoning laws and prison regulations; and most recently the statute moved to center stage in providing corporations and individuals with legal arguments for exemption from the HHS contraception mandate. But in the throes of the HHS fight and other culture-wars issues, it is worth remembering what President Clinton said about religious freedom as he signed the legislation:
... We are a people of faith. We have been so secure in that faith that we have enshrined in our Constitution protection for people who profess no faith. And good for us for doing so. That is what the first amendment is all about. But let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions. Let us instead respect one another’s faiths, fight to the death to preserve the rights of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.
A few remarks about that quote. The President noted in his remarks the overwhelming consensus behind RFRA back in 1993: a 97-3 vote in the Senate, a simple voice vote in the House; the lead co-sponsors were Ted Kennedy and Orrin Hatch. That consensus has greatly shrunk in recent years, mostly because of the polarizing culture-wars issues that have led many people to treat "religion" as a largely conservative phenomenon, a threat to liberal and progressive values. (See here and here for criticisms of that framing of the issue, presenting reasons why in our polarized society, so-called progressives and so-called conservatives should protect each others' claims of conscience against government interference even though they disagree with each other so sharply.)
Notice the implications of President Clinton's remarks for these matters. First, RFRA protects people of all religious views, all of whom may at point be restricted in their faith by one of the many laws in our complex society. Let's recover the sense of "fight[ing] to the death for the rights of [all] American[s]," whatever their faith, to practice their convictions without disproportionate or unnecessary burdens. Second, President Clinton emphasized that religious freedom does not mean freedom in the catacombs. Religious groups and individuals should be able to follow their values without unnecessary legal restriction not just in houses of worship, but in civil society--in schools, charitable activities, and the workplace--and to bring those values "to the table of American discourse."
In 1993 virtually every member of Congress agreed with those remarks and with the legislation. In 2013, that consensus has shrunk. But we can hope, and make prudent and ecumenical arguments to try to ensure, that enough Americans still agree with it to preserve a solid future for religious freedom.
(HT: for the post title, to Paul McCartney; for the link to the Newseum event, to Kim Colby of the Christian Legal Society; for the booklet on RFRA that includes Clinton's signing statement, the Baptist Joint Committee on Religious Liberty)
I should confess, I suppose, that -- unlike Tom (and most other supporters of RFRA) -- I think (nervously) that Smith is probably right, i.e., that the First Amendment probably does not authorize judicially created exemptions from generally applicable, non-discriminatory laws that implicate religiously motivated conduct. (More here on that.) All the more reason, it seems to me, to welcome RFRA-type legislation at both the state and national levels.
Thursday, November 07, 2013
An exchange among law-and-religion scholars about exemptions and marriage
It is, obviously, a "hot topic" whether and to what extent religious institutions and believers should be accommodated through exemptions from antidiscrimination laws (and regulation more generally). This question runs through, for example, the conversation about the so-called "ministerial exception" and also and increasingly comes up (see, for example, this paper by Doug Laycock and Tom Berg) in the context of drafting legislation regarding the legal recognition of same-sex marriage.
A few days ago, over at the Volokh Conspiracy, a group of prominent scholars (Dale Carpenter, Andy Koppelman, Doug Ne'aime, Chip Lupu, and Bill Marshall) put up a post addressing the then-pending same-sex-marriage law in Illinois and arguing that "recognizing same-sex marriage creates no distinct legal conflict justifying resolution in a same-sex marriage bill" and that "even if one thought that same-sex marriage might newly erode religious freedom through anti-discrimination law, the amendment proposed by the religious-liberty scholars is far too broad."
Today, two other groups (Tom Berg, Doug Laycock, Michael Perry, Carl Esbeck, Ed Gaffney, Chris Lund, Robin Fretwell Wilson, Bruce Ledewitz, and me) put up this response at Mirror of Justice, explaining the need for accommodation and defending the proposal at issue. Both posts, in addition, contain links to longer letters that were submitted to legislatures. The response concludes with this:
Carpenter describes his group as scholars "who support both protecting religious liberty and recognizing the marriages of same-sex couples." To reiterate, our two groups of scholars also include supporters of same-sex marriage (as well as a variety of views on that issue). We too are seeking to give room to both equality and liberty, which should complement rather than be at war with each other. We are seeking a "live and let live" solution for same-sex couples and religious traditionalists—but "live and let live" requires more than highly uncertain protection for religious liberty under pre-existing laws. Just as same-sex couples seek to live out their identity not only in private but through the social institution of marriage, religious believers seek to live out their identity not only in churches but in their faith-based service activities and their daily lives. Minimizing the exemptions in a same-sex marriage bill marginalizes those believers and will result in continuing, unnecessary conflicts that may well harden resistance to marriage recognition among a significant number of people. But same-sex marriage with strong exemptions allows both sides to live out their deepest commitments.
I think it is fair to say that, while the disagreements are substantial and important, real and significant respect and friendship exist among all the signers of both letters.
Wednesday, November 06, 2013
Stanford's (interesting and important) religious-liberty clinic
Brian Leiter comments, here, on a piece that ran in the New York Times a while back about Stanford's new religious-liberty clinic. While I disagree with Brian regarding his characterization of the Becket Fund for Religious Liberty's and the Templeton Foundation's support for the clinic as "dubious" or "right wing," and also disagree with his view that our practice of (sometimes) accommodating religious believers through exemptions from otherwise generally applicable laws is immoral, I think he is quite right to push back hard on the idea that clinic is justified as some kind of special favor to conservatives, or Republicans, or whatever. Brian writes:
Most surprising of all is how Lawrence Marshall, director of clinical legal education at Stanford, describes it:
"The 47 percent of the people who voted for Mitt Romney deserve a curriculum as well,” said Lawrence C. Marshall, the associate dean for clinical legal education at Stanford Law School. “My mission has been to make clinical education as central to legal education as it is to medical education. Just as we are concerned about diversity in gender, race and ethnicity, we ought to be committed to ideological diversity.”
So the academic rationale for this clinic is that Romney voters need a law school clinic, on the bizarre assumption, I guess, that the only people seeking religiously based exemptions from laws are Republicans.
Yes, Prof. Marshall is right to remind those who profess commitments to diversity that ideological diversity matters too. But, it is wrong -- it is not fair to the clinic's faculty, students, supporters, and clients -- to frame and defend it as a consolation prize to the "47 percent who voted for Mitt Romney." Many (I hope!) among that 47 percent are happily to engage in experiential learning that involves service to the poor and to immigrants, say, just as (I hope!) many among those who voted for President Obama see the importance of (sometimes) accommodating religious minorities who are burdened by duly enacted generally applicable laws.
Monday, November 04, 2013
A response to Prof. Stone: The justices' "revealing" hiring practices
In this piece, Prof. Geof Stone proposes that a "difference between conservative and liberal justices" is that
"the conservative Justices are determined to spend their time with pre-cleared conservative law clerks. . . . Whereas the more liberal justices were clearly interested in exposing themselves to a range of different viewpoints and having the positions challenged, the conservative justices went way out of their way to ensure that their law clerks were already in sync with their judicial ideology."
In support, Geof points to and characterizes as "revealing" the fact that "[o]f the 20 law clerks appointed this Term by the five conservative Justices . . . or an astonishing 90 percent -- clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices . . . clerked last year for a Democratic-appointed judge."
Let's put aside questions about whether the Republican appointees for whom the "liberal" justices' clerks worked were or are "conservatives" and about how representative this Term's hiring is of the justices' practices over time. And, let's take it as given that almost any and every justice, at least sometimes, takes into account whether a clerkship applicant's worldview, outlook, philosophy, etc., "fits" well with his or her own. Still: Each of the clerks that Geof is talking about, regardless of the party of the President who appointed the Court of Appeals judge for whom he or she clerked, had a resume, a work history, several recommendations, a publication history, a variety of life experiences, etc., and so is not reducible to his or her judge's partisan affiliation.
In order to say with any confidence that "conservative" justices are hiring who they hire in order to avoid encountering a variety of views (or, for that matter, that the liberal justices were doing what they do in order to encounter such views), or even whether such isolation is a by-product of what they are doing, it seems we would need to know a lot more about these clerks -- as, presumably, the justice who hired them did -- than the party of the President who appointed his or her judge. Who knows? Maybe the numbers to which Geof points simply suggests that Republican-appointed "feeder" judges are more willing to hire "liberal" clerks (and to support their applications to the justices) than Democratic-appointed judges are willing to hire and support "conservatives"? Again, it seems we need to know more before we can confidently make the ideological cocooning charge.
(In keeping with the saying that "data" is the plural of "anecdote," here is some more data: One of my co-clerks for Chief Justice Rehnquist was a brilliant and engaging center-left graduate of the University of Chicago who clerked for a Republican appointee and who had been strongly recommended by a "conservative" professor. For one of his co-clerks, he was stuck with me, a "conservative" who had done anti-death penalty work, whose recommenders were "liberal" academics, and who had been blessed with the chance to clerk for a truly great judge, appointed by President Carter.)
Geof makes some other points, about credentialling and patronage, that raise interesting but (I think) different questions.
Tuesday, October 29, 2013
Call for Papers: 5th Annual Religious Legal Theory Conference
This year, the Religious Legal Theory conference is being hosted by John Witte and the (wonderful) Center for the Study of Law and Religion at Emory. The theme is "A Global Conversation: Exploring Interfaith and International Models for the Interaction of Religion and State," and it's being held on Feb. 24 & 25, 2014. More info is available here. Here's a bit from the conference description:
Law and religion share an underlying structure built on commandments and corresponding commitments. They also share a space in the formal regulation of a person’s daily life. Oftentimes they attempt to legislate in the same specific areas, and oftentimes they come to different
final conclusions, or to similar conclusions, but for very different reasons. It is often said that law gives religion its structure, and religion gives law its spirit; law encourages devotion to order and
organization, while religion inspires adherence to both ritual and justice. Law and religion influence each other in many different ways, but at some level they must establish formal
rules for their interactions. This conference aims to explore how law, embodied in the state, manages and frames its relationship with religion, and how religions internally manage and frame their relationships with the state.
Monday, October 28, 2013
Burger & Nixon chatting about pornography, busing, and aging congressmen
A friend sent me a link to the tape of a January 1973 phone conversation between President Nixon and Chief Justice Burger. So far as I can tell, Nixon and was simply returning Burger's "Happy New Year!" call. They talk for a bit about the Court's then-pending pornography case (Miller, I assume?) and Nixon also asks if there are any other big cases brewing. He asks about busing, but not -- interestingly! -- about another case decided in January of 1973 that was a pretty big deal.
In the course of an exchange about aging justices and members of Congress, the Chief Justice notes that the "young" one who had recently joined the Court was "a real star."
Friday, October 04, 2013
How many disputes is "too many" for the Court?
According to this report ("Kennedy Says Too Many Disputes Left for Court"), Justice Anthony Kennedy recently shared with a group at the University of Pennsylvania his view that "any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy." He added, "I just don't think that a democracy is responsible if it doesn't have a political, rational, respectful, decent discourse so it can solve these problems before they come to the court."
Let's resist the temptation to snark a bit about the strangeness of these words coming from a member of the Court who has not seemed, over the past several decades, particularly squeamish about judicial supremacy and all that. One the one hand, I agree, sort of, with what the Justice said, though I suspect that if I'm honest with myself (ed.: Why do that?) I am, like most people, probably guilty of thinking that the "right amount" of Court-resolved serious questions is an amount that corresponds with the number of such issues I believe the Court has resolved correctly. On the other hand, I am not sure it's right that even a decent, functioning democracy of the most ideal type should be expected to "solve" or "resolve" the kind of questions I suspect Justice Kennedy has in mind, if by "solve" he means "identify the Correct Solutions" to these problems or the "Right Answers" to these questions. Certainly, such a decent, functioning democracy could, after plenty of "political, rational, respectful, decent discourse", take a vote regarding the solution or answer, but I'm assuming Justice Kennedy doesn't think that "high-quality discourse plus majority vote" should put the Court out of the judicial-review business. So . . . what is he saying, exactly?
Monday, September 30, 2013
Thoughts on the Court's new legislative-prayer case
I had this contribution, "Legislative Prayer and Judicial Review", to the symposium on the Town of Greece case that the folks at SCOTUSBlog are hosting. (Go here for a list of all the very-worth-reading contributions, including ones by Prawfs-alums Jessie Hill and Nelson Tebbe.) Here's a bit:
. . . In my view, the court of appeals got it wrong and the Town’s before-meeting prayers are permissible solemnizations rather than an unlawful establishment. What is happening in the Town of Greece is consistent with what has been happening at public meetings since our country’s – and our Constitution’s – beginnings. “Establishments” of religion do exist in the world, but this is not one. Town officials did not purport to draft, let alone to enforce, a religious creed and the government inviting voluntary “chaplains of the month” to pray at a meeting is not very much like the government imposing a prayer-book on churches. “Coercing” religious activity is unconstitutional and unjust, but to characterize the Town’s policy as “coercive” is to expand the both the idea of coercion and the power of judges dramatically and unmanageably.
The Town of Greece case, though, is interesting not only for what it could tell us, going forward, about the Court’s First Amendment doctrines and precedents, about the place of religious expression in the public square, and about the extent to which secular governments may acknowledge their citizens’ religious convictions. The case also provides, I think, a good opportunity for reflection about the role and power of the Supreme Court and about the nature and practice of judicial review in a constitutional democracy like ours. . . .
What we do and why we do it
A few days ago, Matt put up a thoughtful post about the ABA Task Force Report on "The Future of Legal Education." Because Chief Justice Randall Shepard, the chair of the committee that produced the report, spoke the other day at Notre Dame Law School on the topic, I took the opportunity to re-read it, and with the benefit of Matt's post.
I agree with Matt that "there is not consensus that the content and quality of legal education has failed to educate attorneys for their work, or that cutting tuition and enrollment numbers are not themselves the best way to address the current crisis. To make these much more contestable claims, there needs to be data and analysis to back it up." And, like him, I was struck by the following assertion in the Report:
- "People are generally risk-averse. Organizations, which are composed of people, tend to be conservative and to resist change. This tendency is strong in law schools (and higher education generally), where a substantial part of the organization consists of people who have sought out their positions because those posts reside largely outside market- and change-driven environments." (p. 15)
The last sentence resonates, I realize, with many who are angry at what they regard as a law-school scam, and I suppose no one would deny that there are some people who fit that last sentence's description who work in higher education. But, as someone who has spent a number of years on a law school's Appointments Committee, and met hundreds of incredibly talented young lawyers and scholars "on the market," it seems to wrong to say - let alone to report confidently, without data -- that a "substantial" number of those on law school faculties have "sought out" positions in legal education "because" those positions "reside largely outside market- and change-driven environments."
Still, even if the claim strikes me as too-quick, there is no denying, again, that it resonates, and it is hard to say to someone for whom it resonates "well, it shouldn't! You need to feel differently!" Instead, I think someone like me -- i.e., someone who looks at his colleagues and sees (for the most part) people who care about the formation and education of students, about the good of the profession, and about the importance to human well-being of the legal enterprise and who are engaged and excited by ideas and exchanges with students and colleagues alike -- has to ask, "o.k., why is it the case -- what have we said and done or failed to say and do -- that a distinguished ABA committee thinks this hasty udgment is spot on and that many students, recent graduates, prospective students, and practicing lawyers think the same?"
My thought here, to be clear, is not, "geez, we pampered law profs need to do some better, image-improving messaging"; it is (I hope) more sincere and self-critical. This sentence in this report suggests that we are failing to communicate -- that is, to express through what we say and do in our teaching and writing -- why we were drawn to and why we are committed to (what many of us see as) our vocations, because -- again -- I don't think it is the case for very many that the answer to this "why?" was or is "to avoid market forces or change."
Tuesday, September 03, 2013
A closer look at the Milgram Experiments
The other day, I heard this NPR interview with Gina Perry, the author of a new-ish book, "Behind the Shock Machine: The Untold Story of the Notorious Psychology Experiments," and was intrigued. My Criminal Law professor, Joe Goldstein, used the experiments in our unusual (but really fun) introductory course, as part of a discussion about consent and human-subjects research.
I have not read Perry's book (yet), but it sounds like she's established that Milgram was pretty set all along on reaching his "regular people will do really bad things if told to by an authority figure" (or, as this reviewer put it, his "most of us are potential Nazis") conclusions and troublingly uninterested in the possibility that his subjects could have been harmed by their experiences. Here's a bit, from a review in MacLean's:
To start with, Milgram was—in layman’s terms—nuts. He began the shock tests without any clear theory of what he was aiming to prove, and had to cobble it together afterwards, some of which he gleaned from a pamphlet entitled, “How to Train Your Dog.” He refused to consider that many people took it as a given that the stated aim of any psychological test was never its true purpose: A large proportion of the volunteers simply didn’t believe Yale would allow people to administer potentially fatal shocks. Among those who did accept what Milgram told them, far fewer than the 65 per cent he claimed actually continued to up the voltage. Worst of all, for fear the truth would leak out to other prospective volunteers, Milgram refused to fully debrief his subjects, many of whom were haunted for years by guilt at what they thought they had done.
If any readers have had a chance to read the book, I'd welcome and appreciate reactions.
Thursday, August 29, 2013
When former students return as hiring-committee members
Several times in recent weeks I enjoyed a (for me) new experience (but one that I know many other law-profs have had) -- former students (in these cases, students I taught during my first semester, in the Fall of 1999) were back on campus for on-campus interviews and meetings with current students. I felt, well, (a) old ("Good Lord, was I teaching law in the 90s?"), (b) humble ("I cannot believe they let me teach law to this guy -- I didn't have a clue what I was doing. Thank God it worked out for him!"), (c) proud ("Dang, this person seems happy in her vocation, and is thriving! If I had anything to do with that . . . cool!"), and (d) grateful (both to the former students from coming by and re-connecting and to all those who made it possible for me to be in the position of helping with the students' education and formation).
Wednesday, August 14, 2013
Jean Bethke Elshtain (R.I.P.) and the Limits of Politics
Jean Bethke Elshtain, "one of the nation’s most prominent and provocative thinkers on religion, political philosophy, and ethics, died Sunday following a major cardiac incident earlier this summer. She was 72." (HT: UChicagoNews). Emma Green suggests, at The Atlantic, that "her greatest legacy of barrier breaking was her serious intellectual commitment to including God in discussions of politics."
"Her joint appointment in political science and the divinity school at [the University of] Chicago was truly unusual," said Erik Owens, a professor at Boston College who worked with Elshtain when she was his dissertation adviser. "Religion was not taken seriously enough as a proper subject of study by political scientists through most of her career, and political science was equally suspect in most divinity schools. She helped to bring these two disciplinary guilds into conversation with one another. This may be one of her greatest legacies as a professional academic."
I was fortunate to have the chance to work with Dr. Elshtain in connection with the "New Science of Virtues" project at the University of Chicago, and had a welcome opportunity to read a lot of her writing preparing a paper for the "Engaged Mind" conference series, at the University's Divinity School, which honored and explored her work. She was generous and gracious, as well as challenging and provocative. I was, and remain, a big fan.
Author and journalist Michael Sean Winters, who blogs at The National Catholic Reporter, included some nice quotes from Elshtain's "Augustine and the Limits of Politics" in this post. For me, for some reason, this one stood out:
False pride, pride that turns on the presumption that we are
the sole and only ground of our own being; denying our birth from the body of a
woman; denying our utter dependence on her and others to nurture and tend to
us; denying our continuing dependence on friends and family to sustain us;
denying our dependence on our Maker to guide and to shape our destinies, here
and in that life in the City of God for which Augustine so ardently yearned,
is, then, the name Augustine gives to a particular form of corruption and human
deformation. Pridefulness denies our multiple and manifold dependencies and
would have us believe that human beings can be masters of their fates, or
Masters of the Universe as currently popular super-heroes are named….Every
‘proud man heeds himself, and he who pleases himself seems great to himself.
But he who pleases himself pleases a fool, for he himself is a fool when he is
pleasing to himself,’ Augustine writes. . .
Thursday, August 08, 2013
Prof. Craig Bradley, R.I.P.
I learned today the sad news that Prof. Craig Bradley (Indiana University-Bloomington) died yesterday. I met Prof. Bradley, when I was clerking, in 1997 -- he was one of then-Associate Justice Rehnquist's law clerks in the mid-1970s (and later edited a volume of essays called "The Rehnquist Legacy"). He was -- from the beginning and always -- helpful, supportive, and kind. For years, Craig wrote and published helpful and concise analyses of the Court's Criminal Law and Criminal Procedure decisions for Trial magazine (here is an example) and he gave me lots of good advice when I first started teaching in those areas.
You can go here, to the IU website, and read and post remembrances of Craig. R.I.P.
Tuesday, August 06, 2013
Lithwick on corporations and religious freedom
This piece by Dahlia Lithwick ("All Corporations Go to Heaven") is -- like so much of what she writes -- entertaining and snappily written, but also (in my view) mistaken in places. Read it for yourself but, for what they're worth, here are two thoughts of mine:
First, it does not seem helpful to describe the issue presented in the Hobby Lobby case as whether "CEOs can impose their religious convictions on the people who work for them." The word "impose" suggests, it seems to me, some kind of coercion -- an effort to require another person to affirm what one affirms or to live in accord with one's religious obligations. Lithwick (like the many others who frame the issue this way) uses "impose" to mean (I think) "act in accord with their own religious convictions, or run their business in accord with those convictions, in such a way that third parties are affected in some way." But third-parties are "affected" by the exercise of legal and constitutional rights all the time. Certainly, no employee of Hobby Lobby is, or would be, required by virtue of their employment to affirm what the "CEO" believes or to live his or her own life in accord with the CEO's religious convictions. The employee would, of course, be affected by those convictions (because he or she would not get free contraception) and the question is whether the government has a sufficiently weighty reason -- one that is weighty enough to justify burdening religious exercise -- for preventing it.
A second thought: Although I realize that our doctrines and the relevant statutory language put us on this track, it does not seem to me that the question presented in a case like Hobby Lobby (or like Notre Dame's own case) is not "does a corporation have free-exercise rights?" The better way to think about it, I think, is to look at the relevant state action, and to ask, "is the government acting in a way that burdens religious exercise or violates the no-establishment norm." The First Amendment, after all, is not (only) a collection of claims or entitlements that individuals and entities have (or don't have). It's a command to the government: Don't violate "the freedom of speech"; don't burden the "exercise of religion."
It is obvious that some regulations of corporations violate "the freedom of speech." And, we can evaluate (and invalidate) such regulations without asking whether corporations have souls, or consciences, or beliefs, or selves-in-need-of-actualization. It seems equally obvious that some regulations of corporations -- including for-profit corproations -- can burden religious exercise (e.g., "no business corporation may sell Kosher meat") and so can (but might not) violate RFRA or the First Amendment. Whether or not they do depends, again, on a variety of factors (e.g., the presence of denominational line-drawing or discriminatory intent, the feasibility of accommodation, etc.).
Wednesday, July 24, 2013
Garnett on "The Freedom of the Church"
I've posted on SSRN a paper that I did for a wonderful conference, last Fall, at the University of San Diego's Institute for Law and Religion. on "The Freedom of Church." (Paul Horwitz's excellent paper, from the same conference, called "Freedom of the Church Without Romance," is available here.) I've been thinking, for several years now (starting, probably, with this article), about the (very old) idea of the "freedom of the church" -- its content, its justifications, its contemporary relevance, etc. Others have, too (and better), and this latest paper is an effort to respond, at least in part, to some of the important questions and challenges that have been raised, especially by Rich Schragger and Micah Schwartzman. Anyway, the paper is called "'The Freedom of the Church': (Towards) an Exposition, Translation, and Defense." Here is the abstract:
This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.
The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
Three short pieces (by lawprawfs) on Windsor in Commonweal
Commonweal magazine has posted short pieces by Michael Perry, Marc DeGirolami, and me commenting on various aspects of the Windsor and Perry decisions. The contribution of Michael Perry ("Right Decision, Wrong Reason") contends that the Court should not have relied on assertions regarding the "animus" behind or the bad motives driving DOMA and should instead have invalidated the challenged provision on the ground that it violates a general right to "moral freedom." The piece by me ("Worth Worrying About?") considers the implications for religious freedom of the line of reasoning in Justice Kennedy's Windsor opinion. And, in "Why Standing Matters," Marc DeGirolami explains (and defends) the Court's justiciability doctrines.
Wednesday, June 26, 2013
AMK's adverb avoidance
Way back in the Disco years, when I was a law clerk, there was an ongoing joke going around that Justice Kennedy really didn't like adverbs of the "-ly" variety, that he would go to some lengths to avoid using them, and that his clerks sometimes have fun trying to sneak them past him. So, I had to smile at this line from his Perry dissent -- "Those errors necessitate this respectful dissent" -- and this one: "These are the premises for this respectful dissent." (Ed.: That's the best you can do for commentary on today's cases? Lame.)
Thursday, June 06, 2013
Immovable ladders, the Church of the Holy Sepulchre, and property rightsThis piece, from Slate, by "Atlas Obscura," is wonderful. Was "Andy" striking back at the heavy hand of status-quo bias, trespassing, stealing, occupying, or -- like that French archeologist in Raiders of the Lost Ark, messing with things best left alone?
Berman on "Alexander's Genius", purpose, and effects
Mitch Berman has posted on SSRN an essay called "Alexander's Genius," in which he praises, and takes on, "one of the most creative, penetrating, and wide-ranging legal theorists working today." (Nice!) The "principal critical target of the essay is Alexander’s contention (a contention that he has pressed both alone and with Saikrishna Prakash) that extreme partisan gerrymandering does not violate the U.S. Constitution."
I read the essay with interest, not only because I think Mitch and Larry are really interesting and smart, but also because I am attracted to the "Alexanderian" position, which Mitch criticizes, that legislative outputs should matter more then legislative inputs -- at least when it comes to judicial design and use of constitutional doctrine. As I understand Mitch's essay, he doesn't rule out the possibility of this position being correct in some contexts. Instead, his point seems to be that, in some contexts, there are good (deontological and consequentialist) reasons to embrace purpose-based rules. Check it out!
Wednesday, May 29, 2013
On "Moving On"
I really enjoyed, and was challenged by, Stanley Fish's recent "Opinionator" column, "Moving On." I have a lot of books, at home and in the office, and (I confess!) I like having a lot of books . . . in piles, on shelves, across the desk, in one of those wheel-cart things. I write in them (imagining ludicrously that I or someone else will someday be curious about my in-the-margins reactions) and just cannot buy the idea that Kindles and Audible.com are substitutes. Yes, I know, this "like" of mine reveals both an insecurity and a less-than-commendable showoffyness. Still, like the Facebook group that "judges you when you use bad grammar", I cannot pretend that I don't judge when I'm in a house with no books. And, giving them away -- even ones I didn't like -- has always been kind of hard.
Fish reports, though, that, after getting rid of a whole bunch of his own (heavily annotated, I assume!) books, he "felt nothing":
In the hours and days following the exodus of the books I monitored myself for a post-mortem (please excuse the hyperbole) reaction. Would I feel regret? Nostalgia? Panic? Relief? I felt nothing. What should have been a momentous event barely registered as I moved on to what seemed the more important task of choosing a new carpet. I was reminded of what a colleague who had left a university after 23 years replied when I asked him if it was difficult to do. He said, “It was like checking out of a motel.”
Really? "Nothing"? That's striking. And, I think, impressive. To be able to look at piles of notes, and annotated books and articles, and "to do" files, and shelves with banker-boxes labelled with various laughably-over-ambitious project-names, and "say," as Fish reports having said:
What I saw on the shelves was work to which I would never return, the writings of fellow critics whom I will no longer engage, interpretive dilemmas someone else will have to address. The conversations I had participated in for decades have now gone in another direction (indeed, in several other directions), and I have neither the time nor, if truth be told, the intellectual energy required to catch up. Farewell to all that. So long, it’s been good to know you. I’m sure you’ll do fine without me.
This strikes me as very . . . "healthy", and not just because Fish is, he says, moving toward retirement. The fact that the "conversations" in which we are (or imagine we are, or aspire to be) participating were happening before us, and will go on after us, and are probably indifferent to (most of) us is a tough one for academics to confront, I think. After all, we are required to assert confidently and often the novelty and importance of our interventions in these conversations. And, it seems fair to say, Fish's actually have been pretty important. He can still say, so long, it’s been good to know you. I’m sure you’ll do fine without me. Again, impressive.
Tuesday, May 28, 2013
Hey, look . . . there's an administrative state!This WaPo piece by Jonathan Turley ("The rise of the fourth branch of government") was welcome (because it will be seen, I suspect, by at least some of my students as adding some plausibility to my own suggestions in class that the place and role of the "administrative state" in our constitutional structure raise tricky questions) but also kind of funny: "The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding. We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government." Whoa . . . who knew?
Monday, May 20, 2013
More on the Town of Greece
Following up on Paul's post, just a few quick thoughts (for now): First, I agree entirely with Paul that his book, and Chris Lund's excellent article, are must-reads on this subject. Since Chris is visiting at Notre Dame next year, I look forward to learning a lot from him about this case.
Next -- and proving true, I guess, Paul's predictions about disagreements-among-friends -- I think it would be a good thing if the possibility Eugene Volokh raises - i.e., that the Court might re-examine the so-called "endorsement test" -- came to pass. I think the criticisms directed at that test in Steven Smith's 1987 article had and have force.
Finally, even if the justices leave the "endorsement test" in place, I hope they do not follow the Second Circuit in importing that test into the legislative-prayer context. Yes, this context is an anomalous one and, yes, Marsh was and is something of an outlier, given that it prioritized history, tradition, and practice over the "wall of separation" idea. For reasons I mention in this very short piece, I don't think the courts are very good at deploying all-things-considered balancing tests that purport to somehow measure the effects of religious displays and the like on the feelings of hypothetical "reasonable observers" and so they probably shouldn't try. Better, it seems to me, to either (a) rule out legislative prayers as per se unconstitutional "establishments" or (b) police the practice for discrimination in selection and leave the issue of particular prayers' content to politics and (dare we hope?) a spirit of charity.
Monday, May 13, 2013
Mike Wallace interviews Justice Douglas on free expression (1958)If, like me, you need excuses throughout the day to take short breaks from grading, this video -- an interview by Mike Wallace of Justice Douglas (about expression, speech, censorship, and "our freedoms" more generally) from May of 1958 -- is an intriguing watch. It was basically about his The Right of the People.
Tuesday, May 07, 2013
"Constitution USA" with Peter Sagal"Constitution USA" (more here) premieres tonight, on your local PBS station. It's hosted by Peter Sagal, of "Wait Wait . . . Don't Tell Me!", and includes bits with a number of law profs (including me, I'm afraid -- that's a whole lotta bald!) about speech, federalism, civil rights, religious liberty, and lots of other things. I've seen some clips, and the show looks to be a lot of fun! Check it out, tell your students, etc., etc.
Tuesday, April 23, 2013
"The Blogger as Public Intellectual": A fun conversation with Paul Horwitz
Notre Dame's Institute for Advanced Study is hosting this week an interesting conference on "public intellectuals" and, this morning, the featured paper was from our own Paul Horwitz, whose topic was "The Blogger as Public Intellectual." (For one blogospheric reaction to his presentation, go here.) Paul was, as per usual, interesting and thoughtful, and I hope he'll post his paper, or a summary of it, soon.
I was the "commenter" (or "commentator"?) who followed Paul and I spent most of my time talking about and reflecting on my experience with my "other" blog, "Mirror of Justice." And, here's some of what I said:
What “stand outs” in my mind, about the “Mirror of Justice” effort – in addition to its relatively distinctive subject-matter – is that it is both a “group” blog and one whose contributors disagree strongly about a lot of pretty important things . . .
Our hope, when we started – and when we very deliberately assembled Catholic law professors from a variety of disciplines and from across the political spectrum – was the same one that University admissions officials cite when they do their work, namely, that the diversity would enrich the conversations that took place. It did, and it has . . . but we’ve also fought a lot . . . Our arguments are, almost always, fairly regarded as “fights among friends”, but they happen “in front of” strangers, which is a bit unsettling (at least for me). They flare up and are resolved “in public” – the sharp elbows are thrown, and the sincere apologies extended, “in public.”
And so, over the years, I’ve come to think of our role less in terms of “providing for the world a coherent Catholic legal theory”, and also less in terms of contributing to (or imposing on) the world various pieces of “public intellectualism.” Instead, . . . I’ve tended to think about what we do more in terms of “modelling.”
It seems to me that what we provide, or offer (or fail to provide or offer) to readers is not so much the discrete work product of a dozen “public intellectuals” as a conversation – an illustration or example – that is, depending on the day, more or less edifying and productive. When I’m blogging now (and this was not always true), I’m thinking not so much of “my own” readership, the way I might if I were a regular columnist for the Washington Post, as I am of my students, and my fellow bloggers’ students, who might be thinking hard about what it means to have a vocation in the law and to aspire to integrate that vocation with one’s religious faith and traditions.
Whether we on the blog are talking or arguing about the election, or immigration reform, or the philosophical anthropology underlying and animating the law of torts, I find myself these days thinking less about the importance of persuading as about the “way the conversation is going.” Don’t get me wrong: My fellow bloggers and I have views (often strong views) and we all want, I am sure, for those who disagree with us to yield to our superior arguments. (We’re lawyers, after all.) Still, and without being too polly-annish or precious, I have found myself in recent years more focused on the community-building and community-maintenance dimension of my blogging than on its evangelical or propagandizing aspects.
I hope no one thought or thinks that my point was that MOJ is somehow more of a "community" than is Prawfs or other group blogs -- that's not it. It was, instead, just that my own experiences over there have, over the years, prompted me to think differently about the blog's "mission" and about what I'm doing over there, and maybe over here, too ("albeit in a boring way until recently"). I have to admit, I worry more about the times I fall (well) short in terms of the "modelling" thing than I do about whether or not X reader changes his or her mind after reading my 143rd post on the ministerial exception!
Monday, April 22, 2013
"What Is a Person?"
On Friday, at Notre Dame Law School, I had the pleasure of participating in a really interesting interdisciplinary roundtable-conference, which was generously organized by Prof. David Opderbeck of Seton Hall (and, this semester, of Notre Dame). One of the presentations was by (and several of the discussion-sessions were about) Christian Smith, who presented the basic argument of his fascinating book, What is a Person? Rethinking Humanity, Social Life, and the Moral Good from the Person Up (Chicago 2010). How cool, to write -- and (it seems to me, so far) to pull off! -- a book with that title! (Not to give too much away, but . . . a person is "a conscious, reflexive, embodied, self-transcending center of subjective experience, durable identity, moral commitment, and social communication who -- as the efficient cause of his or her own responsible actions and interactions -- exercises complex capacities for agency and intersubjectivity in order to sustain his or her own incommunicable self in loving relationships with other personal selves and with the nonpersonal world.")
Thursday, April 18, 2013
Intellectual diversity and institutional pluralism
Over at Balkinization, Mark Tushnet has a few posts commenting and reflecting on a recent event at Harvard Law School, "Intellectual Diversity and the Legal Academy." He notes, in one place, that "what’s striking about the political spectrum in law schools is that it ranges from the center-left, with a handful of outliers to the left, to the rather
conservative right." My own sense is that it would be more accurate to see any "rather conservative" law professors as being "outliers" in the same way that those whom Mark regards as truly "left" are, but I suppose there's no way around the fact that the labels used say as much about the labeler as they do about the labeled, and so I won't dwell on this point.
What really grabbed my attention, though, was Mark's observation in passing that "[i]t’s not at all clear to me that, given across-institution diversity, there’s a
problem with the market in legal education. So, maybe the complaint isn't that
there's not enough across-institution diversity." I think Mark's right to highlight the distinction between cross-institutional and intra-institutional diversity; it's one that is important to keep in mind in this and many other contexts. (So, for example, some of us think that "all comers" rules for recognized student groups mistakenly sacrifice diversity among groups for diversity within groups.) A few years ago, then-Dean John Garvey made this the theme of his tenure as Chair of the AALS, and I blogged about his "institutional pluralism" focus here and elsewhere (and here and here). We might worry, as we think about the "failing law schools" problem, that there's too much (AALS- and ABA-imposed?) sameness among law schools, and not just of the ideological kind.
I agree with Mark that the problem -- and, perhaps unlike him, I do think that it is a reality and a problem -- of a lack of ideological diversity within law schools' faculties and student bodies can be addressed, if not entirely alleviated, by more institutional diversity -- by a genuine market in student bodies and faculties. For such a market to really address the lack-of-intellectual-diversity problem of, though, it seems that there would need to be meaningful institutional diversity (along ideological as well as other lines) among the very top law schools and while I think there is some, there's probably not enough for the kind of market Mark is thinking about.
I'd note, finally, that - thinking about the fact that the "conservative" schools Mark identified are all schools with a religious character or affiliation -- I think we need to be careful about equating a school's distinctive religious character with a "conservative" ideological character. A Catholic law school, for example, might have more than the typical number of students and faculty who support closer regulation of abortion, but that same school might also have more than the typical number of students and faculty who are skeptical of certain forms of libertarianism or who support an arguably inefficiently (by some measures) generous level of social-welfare programming.
Tuesday, April 16, 2013
Goodbye to all that: Rotating out of the Associate Dean job
In a few months, I'll be wrapping up my time (four years) as Associate Dean, and handing things over to a (more capable!) colleague. And -- in part, no doubt, in order to avoid actually completing several Associate-Dean-related projects -- I've been reflecting a lot on how things went, what I learned, what I could or should have done differently, etc. On balance, for sure, I've enjoyed the experience. There are costs -- less writing-time and more meetings-time! -- but there's a non-trivial amount of psychic income that (for me) comes with feeling like one has helped (or even tried to help) an institution that one cares about move in the right direction.
At present, my main "takeaway" is that the associate-deanship has been a humbling (even when not humiliating) experience: I know more about all the impressive things my colleagues are doing; I know a lot better than I did before how much I don't know about legal education, law schools, and law faculties; I know with crystal-clarity how over-confident I was, 5 years ago, that the right steps to take, with respect to all kinds of questions, were clearly see-able and easily do-able. In a way, it's nice -- but in another way, it's a bit immobilizing -- that this new-ish appreciation coincides with all the navel-gazing and hand-wringing inspired by the current "crisis." I think I have some plausible -- even good -- ideas about what nature of the problem, and about some of the steps we might take in response but . . . I have a now-healthier sense of how likely it is that there's more to the problem, and the steps, than I realize.
Thursday, April 11, 2013
Judge Posner on exclaustration and the Constitution
Over at The Volokh Conspiracy, Eugene Volokh has the story about the Seventh Circuit's recent and fascinating decision about the alleged defamation involved in calling someone a "fake nun." Here's a bit from the (I think correct, for reasons I wrote about here) decision:
A secular court may not take sides on issues of religious doctrine. The district judge in this case has ruled that a federal jury shall decide whether Patricia Fuller is a member of a Roman Catholic religious order, though if the jury decides that she is it will be rejecting the contrary ruling of the religious body (the Holy See) authorized by the Church to decide such matters.
A secular court must be allowed to decide, however, whether a party is correct in arguing that there is an authoritative church ruling on an issue, a ruling that removes the issue from the jurisdiction of that court.... But once the court has satisfied itself that the authorized religious body has resolved the religious issue, the court may not question the resolution....
I wonder, though, if my friend Michael Helfand (Pepperdine) has a different view? See his great paper, "Litigating Religion," here.
Friday, April 05, 2013
Two bald guys figure out the Establishment Clause in 30 secondsHere's a short clip from an upcoming PBS documentary, "Constitution USA with Peter Sagal", in which I very . . . efficiently explain (what I think is) the "right way to understand" the separation of church and state. (Another way to describe the video, I suppose, would be to say that it presents "two very bald guys wandering around a courtyard.")
Sunday, March 03, 2013
A symposium on Fleming & McClain's "Ordered Liberty"
Over at Concurring Opinions, there is a very interesting "symposium" going on about Linda McClain and Jim Fleming's important new book, Ordered Liberty. My own first contribution, called "Mutual Adjustment as Merely Congruence Delayed" is here. Among other things, I wrote:
At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so. But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.
So, a more focused thought on a particular part of the book: In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.” Fair enough — these case do indeed illustrate these struggles. But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.” That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions. To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.
- See more at: http://www.concurringopinions.com/archives/2013/03/mutual-adjustment-as-merely-congruence-delayed.html#sthash.MbEEWvpx.dpuf
Jim and Linda respond to me, here. Time to get to work on a reply!
Friday, February 22, 2013
"Is religion special?" comes to NPR
My friend and mentor John Witte and I did a bit yesterday, on "Talk of the Nation", about religious exemptions -- their history, rationale(s), importance, and frequency. If you are interested, check it out. If there was a consistent theme in the callers' questions, it was "is religion special?" (Cf., e.g., Micah Schwartzman, "What if religion isn't special?") In response, John and I both suggested that the answer is (still) "yes."
Wednesday, February 20, 2013
Disagreement, contempt, and the "merriment of heaven"
Prof. Robert Miller (Iowa) has a nice post up at First Things, called "Thanatopsis for Ronald Dworkin." The last few paragraphs really stood out for me. After noting his frequent and deep disgreements with Prof. Dworkin, Miller writes:
Especially with people whom we do not know personally, it is easy to pass from thinking that a person holds bad ideas to thinking that the person who holds such ideas is a bad person—to move from disagreeing with a person to contemning him. This is a moral lapse, of course, because we should love everyone and contemn no one, even people who really are bad, but it is a mistake in another way as well, for it usually involves us in a simple factual error.
In my experience (and as a religious and political conservative in academia, I have a lot of experience of this kind), when we get to know the people with whom we disagree deeply, it usually turns out that they are very good people—people who love their spouses and children, who work hard at their jobs, who have overcome serious hardships and obstacles in life, who are kind to strangers, who are truly upstanding and morally admirable people. Rather than despising them, we end up liking and admiring them.
With people we never meet, however, we do not have this opportunity to see more of them than their ideas. Seeing just the ideas and thinking these are wrong, we too often dismiss the person with the ideas, and people we dismiss we easily come to hate. Reflect for a moment on your feelings for your least favorite politician currently in office. Allowing ourselves to have such feelings, however, reduces us as human beings because the final end of human nature requires that we will the good of all human beings, and it also has deleterious consequences, for it erodes social capital. It makes it harder for us to trust those with whom we disagree, to discuss matters reasonably with them, and to find common ground where such ground can be found in order to work together despite persisting disagreements. . . .
I never met Ronald Dworkin, which is too bad for me, because I am sure I would have enjoyed questioning him about his ideas and perhaps being questioned by him in turn. This, however, is but a minor misfortune. I still hope to meet him in the merriment of heaven.
Tuesday, February 05, 2013
Mitch Daniels's "Open Letter to the People of Purdue"
Former Indiana governor Mitch Daniels, after disregarding my telepathic requests that he run for President, decided to take on the challenge of serving as President of Purdue University, a first-rate land-grant research university in lovely Indiana. Here is his recent "Open Letter to the People of Purdue." For those of us (which is, I imagine, here at Prawfsblawg, "all of us") who have been thinking (and worrying) about the state and future of higher education and the burdens on and opportunities for our students, the letter is a worthwhile read. This is not to say that he says anything we have not heard before, but the "state of things" is presented in a candid and sober way.
The part that jumped out at me, for what it's worth, was this bit, near the end, as he was listing some "observations and . . . suggestions for our collective attention at the outset of [his] service":
Common purpose – A priceless asset of any great university is the independence of its faculty and the frequent individual breakthroughs, in both teaching and research, that it produces. Again and again, as I have moved through the colleges and gatherings of faculty, I heard the phrase "independent contractors" used to describe the working relationship between the school and its professors.
Similarly, I was struck forcefully by the separation among our eleven colleges. A newcomer quickly notices that we are less a "university" than a federation. Obviously, specialization and intellectual autonomy enable the excellence we seek. But, for instance, the widespread duplication of identical functions can work against the common goal we must have of affordability and liberating resources for new investments in faculty and facilities. As so often in life, the phrase "Fine, up to a point" applies.
I hope to find, and perhaps here and there to foster, a somewhat stronger sense of common purpose as we work through the decisions presented to us by a changed environment. Without knowing what they will be or when we will make them, many choices will necessitate a communitarian outlook that consciously places the interests of the overall university first.
This "communitarian outlook" has, as Daniels suggests, at least two dimensions: First, a determination by faculty-scholars to overcome independent-contractor thinking and to connect their own vocations with their institutions' missions; and second, for academic units (like law schools?) to connect the challenges they and their students are facing with those being faced by the universities more generally.
Thoughts? My own sense is that law faculty might be less likely than faculty in some other units to have this "independent-contractor" mindset, but -- again -- that's just a sense.
Thursday, January 31, 2013
Justice Sotomayor wants you . . . to celebrate National School Choice Week
As The New York Times, reports here, Justice Sotomayor is "heartbroken" over the closing of Blessed Sacrament School in the Bronx. The school is, of course, one of nearly 2000 urban-area Catholic schools that have closed in the last decade alone. The Justice said:
“You know how important those eight years were? It’s symbolic of what it means for all our families, like my mother, who were dirt-poor. She watched what happened to my cousins in public school and worried if we went there, we might not get out. So she scrimped and saved. It was a road of opportunity for kids with no other alternative.”
Tuesday, January 22, 2013
Roe v. Wade at 40
Today is the 40th anniversary of Roe v. Wade. For me (but not, I realize, for most of my friends and colleagues in the legal academy), it is a sad day and the fact that it follows on the heels of our celebration of the life and work of Dr. King is dissonance-creating. I realize that many regard the ruling as a welcome step in the direction of equality-under-law-and-in-fact for women (and perhaps also as a needed correction to an excessive influence on law of religious morality), and I'm not (I promise!) looking for a fight but, for me, the decision was a badly reasoned overreach, marked a set-back for human equality, and has had negative effects on our politics, on the judicial-nominations process, and on our constitutional doctrine. We could have done, and can do, better.
In any event, several hundred students from Notre Dame are leaving this afternoon (snowstorm notwithstanding) for the March for Life in Washington, D.C. They'll be joined by tens of thousands of others and, I imagine, ignored by the national media. But, I wish them the best. And, I still think John Hart Ely was right.
Monday, January 14, 2013
"A Theory of Justice": The Musical
This should be great. Much better than Cats. Coming soon to Oxford's Keble O'Reilly Theatre:
AN ALL-SINGING, ALL-DANCING ROMP THROUGH 2,500 YEARS OF POLITICAL PHILOSOPHY
A new musical by Eylon Aslan-Levy, Ramin Sabi & Tommy Peto
In order to draw inspiration for his magnum opus, John Rawls travels back through time to converse (in song) with a selection of political philosophers, including Plato, Locke, Rousseau and Mill. But the journey is not as smooth as he hoped: for as he pursues his love interest, the beautiful student Fairness, through history, he must escape the evil designs of his libertarian arch-nemesis, Robert Nozick, and his objectivist lover, Ayn Rand.. Will he achieve his goal of defining Justice as Fairness?
The world’s first feature-length musical about political philosophy will showcase a script steeped in drama, humour and romance - with a musical score that covers everything from rap battles to power ballads. "A Theory of Justice: The Musical!" will be a light-hearted, tongue-in-cheek, camp and intellectually profound addition to the musical theatre canon.
More information is available here.
Friday, January 11, 2013
The "Freedom of the Church" at AALS
At the recent Annual Meeting of the AALS in New Orleans, the Law and Religion Section -- so ably chaired by Paul Horwitz this past year -- put on a first-rate panel on "The Freedom of the Church." (About which more here.) Michael Moreland, Michael McConnell, Sarah Gordon, and Paul Horwitz each gave excellent presentations, and Jessie Hill moderated expertly.
Paul helpfully "set up" the issue, noting that the issue is timely in part because of events and controversies like the Hosanna-Tabor decision and the HHS-mandate litigation. He then presented, and reflected briefly on, the criticisms of "religious institutionalism" that have been developed by Micah Schwartzman and Rich Schragger (in this paper).
Sarah Gordon reminded the audience that, the First Amendment's free-exercise and no-establishment clauses notwithstanding, religious institutions and (especially) their property were pervasively and closely regulated in many places during the 19th century, and suggested that this fact complicates arguments that the founders and ratifiers constitutionalized a strong "freedom of the church" principle.
Michael Moreland's very thoughtful presentation noted, among other things, that the debate in the public square and in the legal academy about religious freedom generally, and the "freedom of the church" principle specifically, is shaped -- and perhaps distorted -- by the (contingent) fact that the principle so often is in play in debates about, well, "sex." As he reminded us, the conversation needs to be about "God" and "law," too.
Finally, Michael McConnell reflected on the (he thinks) strange fact that the Free Exercise, in Smith, was held to provide almost no protection to individuals, while Hosanna-Tabor, drawing on a principle of church-autonomy that might seem less textually grounded than individual "free exercise", provided strong protections to religious institutions. (In the Q & A, it was suggested that a number of the Court's decisions -- including Kedroff (more on that case here) -- and also the original meaning of the term "establishment" provide substantial support for the principle applied, and the result reached, in Hosanna-Tabor.
Anyway, thanks very much to the organizers, presenters, and moderators for a really good AALS program.
Wednesday, January 09, 2013
Continuing the discussion: Koppelman's "Defending American Religious Neutrality"
A few weeks ago, Paul kicked off a discussion about Andy Koppelman's new book, Defending American Religious Neutrality, and posted Andy's introduction. (Readers might also be interested in this short essay, The Many Paths to Neutrality, which Andy and I wrote, and which serves as the Introduction to our First Amendment Stories.)
I had a chance to "workshop" Andy's book when it was in draft, and have re-read it after its publication. I admire it, and Andy, a lot.
For starters, I appreciate his reminder that, maybe, things are not so bad. Yes, it is true that the Court often makes a mess of things, certain Justices are prone to cringe-inducing displays of unwarranted self-confidence, and the threats to religious freedom, at home and abroad, are real. Still, we have, as Koppelman notes, “been unusually successful in dealing with religious diversity” and, despite the fair and ample criticism directed at our First Amendment caselaw, it strikes me that our courts are “muddling through” reasonably well.
In addition, there are many points, claims, and observations in Andy’s book that strike me as sound and welcome. He correctly criticizes and refutes those “radical secularists” who regard religion as “toxic and valueless” and who seem bent on its “eradication . . . from public life.” He is right that the Constitution does permit – indeed, it invites – the accommodation of religion. He helpfully amends John Rawls’s call for “civic friendship” with the reminder that the “path to actual civic friendship”
is not, in the real world, aided by rules-of-engagement that require the bracketing or translating of “comprehensive views”; the better way, instead, is to “tell each other what we [really] think and talk about it.” He is wise to urge readers not to overstate
or obsess the difficulties involved in “defining” religion, because there is no single definition. And, I think he is right that First Amendment doctrine, to the extent it contains a judicially enforceable “secular purpose” requirement, should focus on legislative outputs – that is, on what officials actually do and say – rather than on inputs, or on the supposed motives of legislators or religious commitments of voters.
Koppelman’s primary thesis is that “American religious neutrality is coherent and attractive.” One question we might ask is whether the regime he describes is actually “neutral,” or is actually either the American regime or the “American ideal.” My own impression is that the coherence and attractiveness of the regime Koppelman proposes and defends depends substantially on its not being – at least, not entirely – “neutral.” This regime is one of neutrality “properly understood” or, it turns out, of non-neutrality. The government is not required, by Koppelman’s “proper” understanding of neutrality to be religion-blind or indifferent to religion, and it is certainly not required to be leery of or hostile to it. Instead, “American religious neutrality” permits governments and officials to regard religion – at a high level of generality – as a good thing, and to act accordingly. The state is to be “silent about religious truth” but this silence may be accompanied or complemented by policies – like religion-based accommodations from generally applicable laws – that both reflect and communicate the view that “religion as such . . . [is] valuable”.
Maybe one way to put the matter is to say that the American religious-liberty regime aims to be “neutral” with respect to the truth of (most) religious claims precisely because it is not “neutral” – it does not aim to be neutral, it should not be neutral – regarding the good of religious freedom. Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing.
So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.
Monday, January 07, 2013
Mandatory public education
At Mirror of Justice, frequent Prawfsblawgger Marc DiGirolami passes on a report from the AALS Annual Meeting. Apparently, at the presentation jointly sponsored by the Constitutional Law and Education sections, Dean Erwin Chemerinsky stated (quoting the report) that "the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas."
In my view, this highly illiberal proposal is, to put it gently, morally unattractive (putting aside questions about whether it would achieve or advance the stated objectives). Marc raises some important and interesting questions about it. I'm certainly open to (dramatic) changes in the ways we fund education (e.g., un-linking education funding from local property values), but -- as I tried to flesh out in more detail, a few years ago, here -- the burden the proposal would impose on religious freedom is far more weighty than Chemerinsky seems willing to acknowledge. (For example, the idea that after-school religious education, or even "release time"-type policies, are sufficient to allow all parents and children to exercise their religious-freedom rights is, in my view, mistaken.) A better way, it seems to me, to alleviate some (we can never eliminate all) of the inequalities that Chemerinsky (rightly!) regrets is to expand (and support financially) choices and options, and to include (appropriately qualified) religious schools fully in the enterprise of public education, i.e., educating the public, at public expense.
Today's most important post
Thursday, December 13, 2012
"A sad sign for higher education"I agree that the (hopelessly lame) new University of California logo is one. "Let there be light" strikes me as a motto that, well, aims a bit higher.
Tuesday, December 04, 2012
Bonus! I've received, in recent days, real-world, dead-tree copies of three books which I am looking forward to re-reading and marking up: Paul Horwitz's First Amendment Institutions (natch); Andy Koppelman's Defending American Religious Neutrality; and Brian Leiter's Why Tolerate Religion? I had the chance to workshop each of these books, in one way or another, and it's a real treat to have them in hand. Those long airplane flights over Christmas are already looking less-unpleasant . . . .
Congrats to Paul, Brian, and Andy!
Monday, November 19, 2012
Let us praise the BCSOr not. Whatever. I'm sure the playoff will be better. But today, the BCS computers have Notre Dame at No. 1 (and Paul Horwitz's Tide at No. 2). Go Irish! Beat condoms! And, if you have a few minutes, check out this short piece (video) about ND's star linebacker, Manti Te'o, who is by all accounts a wonderful guy.
Friday, October 26, 2012
Jacques Barzun, R.I.P."Cultural Critic Saw the Sun Setting on the West." More here. And, you can buy his Dawn to Decadence here.
Thursday, October 25, 2012
Vischer selected as new dean at St. Thomas
I am delighted to report that Prawfs-guest, and my Mirror of Justice colleague, Rob Vischer, has been selected to take over as the new dean of the University of St. Thomas School of Law. Tom Berg has the announcement, here. Rob does great work in law-and-religion and legal ethics, and he will, I have no doubt, building on the record of success that St. Thomas, in just a few years, has already put together. (See, e.g., the scholarly-impact statistics in this piece.)
Congrats to Rob, on this, and on his new book, Martin Luther King, Jr. and the Morality of Legal Practice: Lessons in Love and Justice.