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Monday, January 12, 2015

"Religious Liberty" is Now a Right-Wing "Dog Whistle"

I'm not a big fan of Frank Bruni, admittedly. But his piece yesterday has a number of interesting aspects that are worth highlighting. It's difficult to describe his argument with precision. To say the column ranges all over the map is unjust to cartographers. But its general subject is the real and perceived conflicts between religious liberty and gay rights. There are small pieces of the column I agree with or for which I have some sympathy, and others I disagree with. Here, I want to focus on a few extraordinary and telling moments.

The first, per the title of this post, is this statement:

“[R]eligious liberty” sounds disturbingly like a dog whistle to the crowd that wants specified, codified exemption from anti-discrimination laws; it’s one of the phrases they lean on. If [Jeb] Bush didn’t know that, he should have. If he did, he just sided, for the moment, with religious extremists.

This is a remarkable statement, even if there is a kernel of truth to it. One might be delighted when presidential candidates say anything at all about about constitutional rights. But now it appears that when they invoke one of the nation's oldest, most important, most culturally defining liberties, it should be dismissed as a pernicious right-wing "dog whistle." This is a dispiriting conclusion. It does not bode well for the possibility of meaningful pluralism, or civil disagreement about the scope of our liberties. (It also stretches the term "dog whistle" so far that it ends up sapped of much moral power at all. On this definition, for instance, I take it we would all agree that President Obama's pronouncement that he would look for "empathetic" judges is a "left-wing dog whistle," no matter what he actually meant when he said it.)

Bruni's statement gets more interesting if one tries to unpack why, exactly, invoking "religious liberty" is a conservative "dog whistle." What he means, I think, is that where there is disagreement about the meaning of a constitutional right or value (ie., always), then someone's use of a definition of that term that Bruni disagrees with is not a difference of opinion on constitutional meaning; it's an illegitimate "dog whistle." This really is remarkable. Various versions of the notion that "religious liberty" is just that--a positive right of religious belief and practice, even in the face of legal rules to the contrary--have been prominent throughout American history. A strong version of that view was the law of the law of the land between 1963 and 1990, championed by such notorious conservatives as William Brennan. It might be wrong; even if it's right, it still might lose in the balance against countervailing rights and values. But it's hardly esoteric or unthinkable. Bruni's attempt to rule it out of bounds altogether is a sad commentary on our times.

Given that there is disagreement about the scope of religious liberty, it would help if Bruni proposed a definition of the term. He doesn't. To the extent that one can piece together his views, they are not unusual. But they are more interesting than one might expect from this unsophisticated writer.

In essence, Bruni offers a popular--perhaps even the prevailing--contemporary American view of religious liberty: it is simply a right against clear, intentional anti-religious discrimination. The  egalitarian version of religious liberty is common enough these days. More or less sophisticated and capacious versions of this idea have been offered by different writers. And there's much to recommend it. It's especially attractive to legal formalists and strict doctrinalists; it's no surprise that one of the leading cases supporting it is Justice Scalia's opinion for the Court in Employment Division v. Smith. This understanding of religious liberty is hardly outlandish. But I find two or three things especially interesting about Bruni's apparent understanding of this version of religious liberty, and the implications of that view.

First, note Bruni's definition of the scope of religious liberty: it applies in, and only in, people's "pews, homes and hearts." Some version of this, too, is common enough, although it's not always so niggling. In fancy-law-speak terms, it's just a strict version of the "public-private distinction." I find it startling that Bruni relies so heavily on this distinction at all, let alone such a strict version of it. That distinction has been the subject of countless, often perceptive criticisms for at least the last sixty years. But to read Bruni--and not just Bruni--it's as if Critical Legal Studies, feminist legal theory, and other critiques of the public-private distinction simply never happened. Bruni's ingenuous statement arguably reveals him as a staunch follower of the Legal Process school, a mid-twentieth-century legal conventionalist apres la lettre. It's an oddly old-fashioned thing for him to be--and I think he's hardly alone in this.

Bruni's egalitarian definition of "religious liberty" is essentially parasitic on an anti-discrimination norm. His understanding of the Free Exercise Clause should therefore say something about his reading of the Equal Protection Clause. It's tough to reach firm conclusions here, unfortunately. Even though his column is all about "religious liberty," "equality," and "anti-discrimination," Bruni defines none of those terms. But it's entirely possible to ask reasonable questions. Does Bruni believe that a law can discriminate against religion even if it does not do so facially and explicitly? Does he believe that a law that has a disparate impact on religion can violate "religious liberty," even if the law is facially neutral? Leaving aside the Establishment Clause, does he think the Free Exercise Clause permits the state, for reasons of diversity or other such grounds, to make decisions favoring religious individuals or groups at the expense of otherwise similarly situated non-religious individuals or groups? Or, as I think is the case, does Bruni believe that "religious liberty" is only guarantees formal equality? What are his consequent views of the proper interpretation of the Equal Protection Clause with respect to individuals or groups other than the religious? There is no question, given his approach, that his view on one clause must relate to the other or even be identical to it. How does Bruni feel about Washington v. Davis, or Bakke or Grutter, or other such cases?

Again, Bruni covers a lot of ground here. Again, there are areas where I agree with him. (Although I do not think, as Bruni apparently does, that the law must penalize Mormon hairdressers who "turn away clients who saunter in with frappucinos," and that this is so blindingly obvious that everyone would agree about this. It's one thing to say that the religious views of those who operate businesses should not entitle them to refuse service based on someone else's race, gender, sexual orientation, and the like. It's another thing to say that business owners should never be able to turn away anyone on the grounds of strong and sincere personal objections of any sort. Or does Bruni think that it's only actions based on religious grounds that must be legally erased from the marketplace?)

What is interesting and revealing about his column, though, is not just what he says. It's also what he doesn't say, and doesn't appear to recognize. He appears to think his conclusions are both self-evident and clear. But they are all based on labels: "religious liberty," "anti-discrimination," "equality." These are not infinitely malleable terms. But they're sure as hell contested ones; at least in the case of "equality," they also rely on conclusions that lie well outside the confines of the word itself. One would hope that Bruni would at least attempt to define them. We might then not only be able to evaluate them, but to ask how consistent he is in his application of those seemingly self-evident principles in other areas, such as the Equal Protection Clause. Given his failure to offer any definitions at all, or seemingly to recognize that these terms need to be defined, it's--well, I'm not sure whether it's surprising or unsurprising--that Bruni can so confidently assert that the public invocation of "religious liberty," one of the most defining values in American life, law, and history, is a mere "dog whistle." How passionate American political debate is these days, and how impoverished.         




Posted by Paul Horwitz on January 12, 2015 at 11:35 AM in Paul Horwitz | Permalink


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