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Wednesday, May 06, 2009

Greenawalt, Hamilton on the Rule of Law and Religious Exemptions

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

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

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

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

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

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

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

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

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

Posted by Marc DeGirolami on May 6, 2009 at 10:25 PM in Religion | Permalink


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I appreciate it.

Posted by: Joe | May 7, 2009 11:57:38 AM

My apologies -- I am deeply primitive about links (and many other technological matters). If you eliminate an http://, you should get to the site.

Or, here are the two links in order:



Posted by: Marc DeGirolami | May 6, 2009 11:05:09 PM

That final link doesn't work.

Oh, and religion is her hobbyhorse -- she has noted that she once had a different view, and apparently, this is evidence of the converted going extreme in the other direction.

Posted by: Joe | May 6, 2009 10:52:29 PM

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