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Monday, December 19, 2011

On Ties, Tragedy, and Kissing Your Sister

Let me say another word, in addition to what I said in the comments on that post, about what I'm thinking about in terms of the connection between ties in sports and law and religion.  I recently attended a terrific symposium on law and religion run by Austin Sarat at my own University of Alabama School of Law, called "Matters of Faith."  The general question had to do with the proper balance between what religious entities are entitled to do as a matter religious freedom or institutional autonomy, and what the state can require of them (as in the Hosanna-Tabor case).  What fascinated me was that there was a rather stark 2-2 split between the main speakers about which should be privileged: generally applicable state interests and values, especially values like non-discrimination, or church autonomy.  (There was a fifth speaker, not a law professor but a religious studies professor with a historical bent.  But she gave a historically oriented paper with little by way of normative conclusions.  Just like a historian to refuse to tip the balance in the argument among the law professors, who were all arguing normatively!)  It seemed to me a clear deadlock: there was no way to declare a winner, no word or formula (like "autonomy" or "non-discrimination" or "equality" or "liberty" or anything else) that could make it evident that one side of the debate should prevail over the other.  It was a tie, pure and simple.  Austin chose his speakers very well, and there was a lot of terrific mutual engagement and self-criticism (although not enough of the latter to suit me).  But there was certainly no resolution.

It seems evident to me that this kind of deadlock is a constant in church-state relations and jurisprudence.  

(And not just church-state law, by any means.  It is a constant in constitutional law, and law more generally.)  That's true for any number of reasons, but certainly one of them is that these issues raise a plurality of values, and often incommensurable ones at that, none of which has any clear lexical priority.  We can simply declare by fiat that one value wins over another--generality over accommodation, liberty over equality, and so on--but we can't reason our way to a victory, and indeed, sometimes the more we try to do so the more apparent the impossibility of doing so becomes.  The more one appeals to, say, "equality," or the generality of the "rule of law," the more visible the porousness or even emptiness of those terms becomes and the clearer it is that only force can settle the issue.  

In one sense, we could say that as far as the caselaw itself is concerned, courts have to decide cases no matter what, so if fiat is what's called for, fiat is what we should have.  But, of course, the same requirement does not apply to scholars.  Furthermore, even for courts, it's usually silly to talk about some final victory for one value or another, especially in the church-state area.  Rather, we see pendular movements back and forth between one value and another, with one value or another ascendant during particular periods but no one value prevailing once and for all.  What we have in church-state law, often enough, is a tie.  This, I take it, is one reason that both Marc DeGirolami and I have emphasized the "tragic" nature of church-state law.  (Although I take it Marc thinks I am less of a thorough-going tragedian than he is in this area.)

Now, I'm obliged to write a comment on one of those pieces: happily, I'll be writing about my friend and co-blogger Rick Garnett's excellent contribution to the symposium.  So I thought that rather than cast my lot on one side or the other (although I've done so, more or less, on other occasions), I would think and write about the deadlock itself.  Hence my interest in thinking about ties in sports, and especially about the philosophical arguments for or against them.  (Cites are still welcome!)  A classic phrase describes ties in sports as being like "kissing your sister."  The title of my comment will be something like "Why Law and Religion is Like Kissing Your Sister."

I should say that although I don't think we can resolve the tie, we can think more productively about how to approach it given certain arguable facts: the fact of the impasse itself, the fact of religious pluralism in our society, the fact (and problem) of illiberal groups, and the possibility (I would say the fact, but others may disagree) that the liberal consensus itself, which might at one time have offered a way out of the deadlock, no longer commands sufficient agreement to break the tie anymore.  Indeed, a major aspect of my book The Agnostic Age (still not to late to order it as a Christmas or Hannukah gift!  Please, please buy it and give me your time, attention, and money.) is its argument that given our current circumstances in what Charles Taylor calls a "secular age," the best we can hope for is an approach that takes questions of religious truth seriously and calls on us to do our best to approach these questions with a degree of empathetic agnosticism.  But I am also careful toward the end of the book to emphasize that I think that even if empathetic agnosticism is terrific and better supports our church-state jurisprudence, neither it nor any other strategy or value can truly resolve these issues.  A certain measure of incommensurability, deadlock, and tragedy, I write in the book, is encoded in the DNA of our church-state relations, and there's ultimately nothing that we can do to totally eliminate the moral remainder.  I hope that thinking and talking a little about ties in sports will help illuminate and clarify this idea in church-state law.  

One last point, and a reference to someone else's work besides my own (!).  One point I make in the book is that even if empathetic agnosticism can't resolve difficult church-state cases, it might helps us to better address the losers in those cases.  If someone has to win and someone has to lose, that doesn't mean we shouldn't care about how we talk to the loser (and the winner).  Many of those who, for instance, favor the claims of the plaintiff against the church in the Hosanna-Tabor case, display in their writings a distrust of, if not a hostility towards, illiberal groups.  (See also the CLS case, and the famous Mozert v. Hawkins case.)  In my view, even in cases where everyone agrees the illiberal group must lose, we need to find new and better ways of addressing those losers in a way that will keep them roughly within the fold of liberla society, or at least not too far outside it.  No one likes to be told that they lose, but there are better and worse, and more or less respectful and empathetic, ways of doing so.  (See, for instance, Judge Boggs's opinion in Mozert, which rules for the school but takes seriously the plaintiffs' claims rather than dismissing them as irrational nonsense.)  Just as there are better and worse ways to resolve ties in sports, so there are better and worse ways of declaring victors in an area, like church-state law, in which, even if one side has to win, the underlying issues are incapable of final resolution.  And I have recently noticed the publication of a book that apparently deals with a very similar topic.  I haven't read it yet, but I will soon and I encourage others to take a look at Emily Calhoun's recent book, Losing Twice: Harms of Indifference in the Supreme Court.  Here's the book description; I can't wait to read it.

Constitutional 'losers' represent a thorny and longstanding problem in American constitutional law. Given our adversarial system, the way that rights cases are decided means that regardless of whether a losing side has committed any actions that cause harm to others, they typically suffer unnecessary harm as a consequence of decisions. In areas such as affirmative action and gay rights, the losers are essentially punished for losing despite neither intending nor causing injury. 

In Losing Twice, Emily Calhoun draws upon conflict resolution theory, political theory, and Habermasian discourse theory to argue that in such cases, the Court must work harder to avoid inflicting unnecessary harm on Constitutional losers. But for this to happen, Calhoun contends, the role of judges needs to be reconceptualized. She contends that the Court should not perceive itself simply as an adversarial forum, but also as a 'transactional' one, where losers are not simply losers but participants in a process capable of addressing and ameliorating the effects that come with loss. Filled with lucid discussions of well known cases, Losing Twice offers an intellectually powerful argument for transforming the decision-making process in Constitutional rights disputes. 


Posted by Paul Horwitz on December 19, 2011 at 10:42 AM in Paul Horwitz | Permalink


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Paul, great post, as per usual but . . . it *wasn't* a tie, at Alabama. =-) Seriously, though: as I see it, the view that there should be something like a "ministerial exception" is one that is at least consonant with premises -- "liberal" premises -- that "both sides" profess to share; the strong anti-ME view, on the other hand, seems not to be consonant with the premises -- "liberal" premises -- of those who advance that view profess to hold. Do you disagree? And, if not, isn't that a reasonable and workable "tie-breaker"?

With respect to "ties" in sports: A challenge for the analogy, it seems to me, is that in the law-and-religion context generally (and the ME context generally) it is not clear that the sides regard themselves as two competing players in a game governed by known and mutually agreed upon rules; instead, at least one side (for lack of a better word, the "government side") claims the power to make the rules and also serve as referee.

Posted by: Rick Garnett | Dec 20, 2011 9:00:24 AM

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