Friday, September 23, 2016
I've just happened upon an intriguing comparison of the Lochner-era cases, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) in Rutgers Journal of Law and Religion, published in 2012. The piece, entitled Pope Pius XI's Extraordinary -- But Undeserved-- Praise of the American Supreme Court is authored by David Upham, Director of Legal Studies and Associate Professor in the Politics Department at University of Dallas.
Though Meyer and Pierce are generally cited together for the proposition that the 14th amendment protects the right of parents to direct the upbringing of their children, Upham shows that the manner in which the Court reasons to that right is distinctive in Meyer and Pierce, though they deal with similar questions and were decided within two years of one another. According to Upham, in Meyer, the Court uses expressly natural law reasoning to depict the integral relationship between marriage, procreation, and educational authority: the parent had a "natural duty to give his children education suitable to their station in life..." to which a corresponding "right of control" in the parent was secured by the common law and 14th amendment. Upham argues that, unbeknownst to Pope Pius XI who praised the Court's opinion in Pierce, its authors were actually no friends of natural law theory (whether of the Thomistic or Lochnerean variety).
Note that in Meyer, unlike Pierce, one reads an express statement that the common law and the Constitution served merely to recognize and guarantee, respectively, these natural familial rights, but not to establish or create them....Furthermore, unlike Pierce, which defined parental authority to include even the power to determine the child’s “destiny,” the Meyer opinion indicated that natural (and common law) rights are ordered to a pre-established natural end or destiny; that is, these rights are all essential to the pursuit of happiness.
The Center for the Constitution at Georgetown Law Center and the James Wilson Institute (aka Hadley Arkes' outfit in DC) are co-sponsoring a day-long conference on substantive due process on October 6th. Hadley Arkes and Matthew Franck will open the event with a long-anticipated debate of their now well-known opposing views of the subject.
Michael Stokes Paulsen and Justin Dyer will then take the floor to discuss what might be called the jurisprudential book ends of the doctrine: Dred Scott and Roe v. Wade. Dyer, of course, has written a book length treatment of the similarities between the two cases, and Paulsen treats the comparison repeatedly in his masterful The Constitution: An Introduction.
Randy Barnett, the director of the Center and hero of libertarians everywhere, concludes the day with with the keynote, proposing a "good faith theory of due process of law." Barnett's "presumption of liberty" is sure to make a central appearance--as will, one expects, that other substantive due process case, unmentioned in the day's schedule: Lochner.
I am hoping to make the event and promise to blog if I do.
Some graduate students at Notre Dame are putting together what looks to be an outstanding conference, which might well be of interest to MOJ readers:
- Alasdair MacINTYRE, University of Notre Dame
- Jean-Luc MARION, University of Chicago and the Sorbonne
- Jean PORTER, University of Notre Dame
- Emilie TARDIVEL-SCHICK, Institut Catholique de Paris
The common good enjoys a central place in classical and Christian social thought. Although the concept is frequently invoked in both theological and political discourse, its rhetorical use is rarely connected to a more satisfying theory of its form or content. When rigorously conceived, however, the common good has ramifications for nearly all social inquiry, both empirical and theoretical. The resurgence of interest in the principle of the common good demands a two-fold conversation: one part building a conception of the common good that moves beyond vague or platitudinous gestures and the other applying the principle to social questions in a rigorous and intelligent way. This conference aims to embody that conversation across the many disciplines which can view the common good as their common project.
We invite both theoretical and applied papers that address key questions about the common good: Is the common good still relevant today? Which conception of the common good best illuminates our understanding of politics, ethics, economics, and other social institutions? What arrangements in family life, civil society, and politics will best foster the common good? Submissions are welcome from the perspective of any discipline of social inquiry, including but not limited to: philosophy, theology, political science, sociology, economics, history, and law. The conference will be structured to foster exchange among competing theoretical conceptions of the common good as well as debate about the application of these conceptions to particular disciplines and moral/social/political problems.
Please submit an abstract of no more than 300 words by November 15, 2016 to firstname.lastname@example.org. Notices of acceptance will be sent by December 6, 2016.
All presenters at the conference will receive a private hotel room for two nights during the conference as well as a small stipend of up to $150 to help defray documented transportation expenses. There is also a limited fund to further assist those who may be traveling from abroad; such funds will be awarded upon request, based on availability. For more information, please email us at the above address or visit the conference website at nanovic.nd.edu/cg2017.
Thursday, September 22, 2016
Check out the information, here, about the Constitutional Law Fellowship with the merry band of happy warriors at the Becket Fund for Religious Liberty:
The Becket Fund’s Constitutional Law Fellowship gives exceptional recent law clerks or law school graduates immediate, hands-on experience litigating cutting-edge constitutional cases. Under the mentorship of experienced Becket attorneys, fellows will participate in all aspects of trial and appellate litigation, gaining valuable experience in litigation strategy, research, writing, and oral advocacy. The fellowship is also an excellent stepping stone to a judicial clerkship, private practice, academia, or a permanent position with the Becket Fund.
Wednesday, September 21, 2016
Scholarship about religious-freedom exemptions from laws has increasingly focused on whether the existence of any "harms to third parties" is a ground for holding that an exemption is not required by religious freedom principles, or is perhaps even forbidden by the Establishment Clause. I've just published my analysis of the question, in the Federalist Society Review. A couple of excerpts:
The chief assertion of this article is that harms to others should not be conclusive against religious exemptions under either free exercise or nonestablishment principles. Such harms can certainly be a reason to deny exemption, but they are not the end of the inquiry: a number of factors must be considered. In particular, I argue, Establishment Clause limits on religious exemptions should not be strict. An exemption is not unconstitutional merely because it has negative effects on others: the burdens on others must be significantly disproportionate to the burdens that it removes from religion....
Under post-1937 constitutional jurisprudence, government has broad prima facie power to define, declare, and prohibit [legal] harms. The modern state is not limited to imposing liability for actual harmful effects; it may declare legal rights designed to head off such effects. And it may frame them as benefits or rights for individual third parties. For example, to prevent the ultimate material harms of labor strife and unfair treatment of employees, government can declare rights of employees to unionize and can allow individuals to sue to enforce the right.
But just because government can prima facie regulate does not mean it can do so in ways that substantially burden religious exercise. The very point of the freedoms listed in the Bill of Rights, including religious freedom, is to place limits on actions otherwise within the government’s power. If religious freedom confers no right to harm others, and the government can define anything it wishes as a harm, then the regulatory state will severely constrict religious freedom. For example, once Title VII and analogous laws defined various forms of discrimination as a legal harm to employees, religious organizations faced lawsuits triggering civil court review of their employment decisions concerning their clergy and other leaders. Their ability to choose their leaders was preserved only by a court-ordered religious exemption: the ministerial exception, affirmed in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC....
If religious freedom is to continue receiving strong weight in an era of greatly expanded government, the existence of some harm to other individuals cannot be enough in itself to deny exemption or accommodation. On the other hand, harms to others certainly are grounds for limiting religious freedom in a number of circumstances.
... And then you read the rest to find out when. (I've done a longer version of the arguments here.)
Monday, September 19, 2016
At Crux, Charlie Camosy has some thoughts about, and is developing a proposal regarding, a Consistent Ethic of Life (CLE) political party. Way, way back, in the early days of MOJ, Dean Mark Sargent and others also speculated/hypothesized/ruminated about such a party. He points out, among other things, that "we consistent ethic folks have a problem: there is no agreement about what a pro-life party with a consistent ethic should look like." I agree. (Like Charlie, but for some different reasons, I don't regard the American Solidarity Party as a promising venture or alternative to our current situation.)
(At least) two questions, it seems to me, would have to be "on the table": One would be "what positions and policies would such a party have to address specifically, and what would it need to say about them?" Another would be, "what positions, if taken or endorsed by another party, would preclude -- or, maybe, weigh heavily against -- an endorsement by the CLE party?"
I'm pretty sure the two-party system is here to stay, in the U.S., so this might all be, as they say, "academic"; still, its interesting to think about. And, who knows: I was pretty sure a year ago that the two major parties' nominees would be Joe Biden and Jeb Bush . . .
Perhaps this is very old news in our 24 hour news cycle, but MOJ readers who haven't yet read Archbishop Chaput Tocqueville Lecture at Notre Dame last week, should do so. It's a quick read but worth it-- and really, who would want to skip a lecture so named at a time in our nation's history when the great Frenchman's insights are so desperately needed? Democracy in America should be required reading these days -- or, if the tome is just too vast, maybe this forthcoming book would do?
My favorite paragraph of Chaput's is this one -- really the Tocquevillian hermeneutic through which one can understand this election cycle, and really the ever-present threat to American democracy:
People unwilling to rule their appetites will inevitably be ruled by them — and eventually, they’ll be ruled by someone else. People too weak to sustain faithful relationships are also too weak to be free. Sooner or later they surrender themselves to a state that compensates for their narcissism and immaturity with its own forms of social control.
Friday, September 16, 2016
As I write, first-year torts students across the country are learning that much of the law of negligence isn’t really “law” but is instead an accumulation of judgments about something called “policy” (often based on cost-benefit analysis) by courts about whether liability is appropriate. To think about, for example, whether a duty of care existed between this defendant and this plaintiff in any other way is a hopelessly naïve harkening back to the bad old days of privity and other retrograde concepts in cases like Winterbottom v. Wright (1842).
That all seems to me badly mistaken. It’s a legacy of the moral skepticism of Oliver Wendell Holmes and William Prosser to reject any vestige of formalism and regard torts as basically a utilitarian regulatory body of law. (That’s a rough characterization, but the details are persuasively spelled out by John Goldberg and Ben Zipurksy in The Moral of MacPherson, 146 U. Pa. L. Rev. 1733 (1998)). The great merit, among others, of the civil recourse view of Goldberg and Zipurksy is to rebut that skepticism and bring some legal structure back into the discussion of duties of care.
The same kind of argument can, I think, also be brought to bear on the element of proximate causation, though proximate cause is probably trickier than duty. I started thinking about this when I read a blog post from a while ago by Alexander Pruss on “causation in the right way:"
It's a medieval dictum that causes contain their effects. But that needs qualification. Causes in a sense contain their proper effects. They contain those proper effects as telê, and then some aspect of the effect--perhaps with cooperation or thwarting from other causes--just is an actualization of the cause with that telos. When all goes well, the whole of the teleologically specified effect is an actualization of the cause, but in aberrant cases, very little is....
[W]e could say that when x causes y in the right way, then being-an-actualization-of-x is an intrinsic feature of y, a feature that is causally involved in everything y does, and so when y causes z in the right way, z has the intrinsic feature of being-an-actualization-of-y, and we can go back down the chain to x. Perhaps this is what Aquinas means by per se ordered causal series.
This isn't the place for a complete account of how to map "causation in the right way" onto the element of proximate cause in torts, but I think that account would be a helpful corrective to so much blather in torts casebooks about proximate cause as a free-for-all policy judgment. And most importantly, as Pruss notes, such an account would "require a fairly non-reductive metaphysics of human beings."
I’ve been reading a lot of Bernard Williams lately—partly for some professional reasons, partly out of sheer enjoyment and admiration for his bracing arguments. His critique of utilitarianism seems to me still underappreciated by legal scholars, but why that might be so and its importance are topics for another time. Here is a little bit from his essay “The Makropulos Case: Reflections on the Tedium of Immortality” (from his 1973 collection Problems of the Self) discussing the Spanish philosopher Miguel de Unamuno--and with perhaps some important implications for law:
Unamuno reveals himself at equal removes from Manicheanism and from Utilitarianism; and that is correct, for the one is only the one-legged descendant of the other. That tradition – Manichean, Orphic, Platonic, Augustinian* – which contrasts the spirit and the body in such a sense that the spiritual aims at eternity, truth and salvation, while the body is adjusted to pleasure, the temporary, and eventual dissolution, is still represented, as to fifty per cent, by secular Utilitarianism: it is just one of the original pair of boots left by itself and better regarded now that the other has fallen into disrepair. Bodies are all that we have or are: hence for Utilitarianism it follows that the only focus of our arrangements can be the efficient organisation of happiness. Immortality, certainly, is out, and so life here should last as long as we determine – or eventually, one may suspect, others will determine – that it is pleasant for us to be around.
Unamuno’s outlook is at the opposite pole to this and whatever else may be wrong with it, it salutes the true idea that the meaning of life does not consist either in the management of satisfactions in a body or in an abstract immortality without one. On the one hand he had no time for Manicheanism, and admired the rather brutal Catholic faith which could express its hopes for a future life in the words which he knew on a tombstone in Bilbao:
Aunque estamos in polvo convertidos
zen Ti, Señor, nuestra esperanza fía,
que tomaremos a vivir vestidos
con la carne y la piel que nos cubria.**
*I don’t think it's quite accurate to lump “Augustinian” into this set of views given Augustine's break (how much so is a long-running debate) from Manichaeism.
**Though we are become dust,
In thee, O Lord, our hope confides,
That we shall live again clad
In the flesh and skin that once covered us.
(Miguel de Unamuno, The Tragic Sense of Life (1921), trans. J.E. Crawford Flitch)
Thursday, September 15, 2016
The introductory pages of Commissioner Peter Kirsanow's important statement in the Peaceful Coexistence Report resound in themes taken up by Mary Eberstadt in her new book, It's Dangerous to Believe: Religious Freedom and Its Enemies. Both Kirsanow and Eberstadt suggest that the difficult cultural and legal impasse we've reached between SOGI laws and religious liberty is so fraught because, at base, the conflict concerns competing "religious" beliefs, one secularist, the other Judeo-Christian. And as such, both are fundamentally identity-forming, especially as regards sexuality.
Kirsanow's statement at pages 43-4 of the report:
The tension between religious liberty and nondiscrimination principles appears most acute when religious liberty and sexual liberty conflict....It is a conflict between two worldviews, both held with the intensity generally associated with religious belief. The first, which is secularism, holds an individual’s unfettered sexual self-expression as a preeminent concern because it is an aspect of their self-creation. This interest in the individual is now construed as a positive responsibility to ensure that everyone has the ability to engage in sexual conduct without cost or consequence, whether in money, unwanted children, or hurt feelings. An individual’s sexual behavior is considered an act of self-creation and something that goes to the deepest level of their identity. Criticism of an individual’s behavior is considered an attack on the dignity of the person. Naturally, this worldview is at odds with many aspects of traditional morality grounded in sexual restraint.
Eberstadt makes the claim as to the religious character of the conflict more unequivocally:
[I]t seems beyond dispute that progressive ideology shares recognizable features with Judeo-Christianity, even as it repudiates all traditionalists tenets that threaten its substitute theology. The bedrock of contemporary progressivism can only be described as quasi-religious. In sum, secularist progressivism today is less a political movement than a church....The so-called culture war...is  a content of competing faiths: one in the Good Book, and the other in the more newly written figurative book of secularist orthodoxy about the sexual revolution.
And here, Kirsanow could be quoting Eberstadt (who, for example, compares embattled Christians to the victims of the Salem witch trials): "One reason for the bitterness surrounding the debate is that the secularists tend to make their interpretation mandatory for society. Because they consider the providentialist view a heresy, and often regard the non-elite adherents of the providentialist view with disdain, they are unwilling to allow different views to exist in different places."
Kirsanow concludes his lengthy statement with the question Eberstadt suggests animates her book: But why should secularists care about threats to religious freedom?
Kirsanow's answer (read Eberstadt's book for hers!):
Because if they destroy the moral and religious assumptions underpinning the idea of human dignity, they may accidentally destroy the idea of human dignity itself....As discussed earlier in this statement, the effort to force traditional religious believers to bow to certain sexual mores is really an attempt to replace the old faith with the new. But if the old faith is destroyed, and with it the idea of human dignity, the adherents of the new faith may rue the day they did so. Secularists may believe that they are simply expanding the idea of human dignity to encompass various important facets of human behavior, but in so doing they are destroying the foundation of the idea and are unlikely to find a similarly compelling basis. Revolutions often turn on their instigators. The Judeo Christian belief that man is created in the image of God, the imago Dei, undergirds Jefferson’s proclamation that “all men are created equal”. Despite the failures of its adherents, as is the case with any set of principles, this concept is the root of the traditional Christian belief that people are ends, not means, and that therefore every person - male, female, black, white, disabled, gay, straight - is inherently dignified, despite his undoubted sins and perhaps seemingly dubious prospect of salvation. Without that foundation, the idea that everyone has equal dignity is little more than a polite fiction to be brushed aside for greater convenience.
As perhaps an example of the transformative influence of imago Dei in Christian sensibilities, Kirsanow offers the Christian response to slavery in a later rebuttal statement in the report. It too is well worth quoting:
Of course, there were Christian slave owners in America. That is indeed a repugnant period in American and Christian history but, unfortunately, unremarkable when viewed in the context of history as a whole. Slavery has been an almost universal institution. It is the abolition of slavery, largely because of individuals motivated by their Christianity, that is unusual. So, it is peculiar that the Chairman singles out Christianity for opprobrium in regard to slavery. Slavery has existed in almost every society and among the adherents of almost every major religion. But it was only in the Christian world that a serious critique of slavery arose. Those Christians who supported slavery were utterly unremarkable in the sweep of human affairs, no better or worse than millions of others throughout history. In contrast, it is remarkable, perhaps even astonishing, that there were Christians who rose far above the historical propensities of humankind to call for abolition as a religious and moral imperative.
It was the self-avowed Christian British Empire that initially ended its own involvement in the international slave trade and then acted to curtail the slave trade within the Muslim world. As the Middle Eastern scholar J.B. Kelley wrote: "No movement of any consequence towards abolition ever arose of its own accord in the Muslim world; it was the reproach of Muslim slavery, not Christian, that men and boys were castrated for service in the harim; and it was a Christian nation, Britain, which led the campaign to end the Arab slave trade and to compel Muslim rulers to forbid it to their subjects. . . . It was [British officials], after all, who led the Arab tribes of the Persian Gulf to cease trading in their fellow Muslims, the Somalis."
Religious believers were also in the forefront of the civil rights movement. Of course, the most prominent leaders of the civil rights movement were disproportionately Christian ministers - Rev. Dr. Martin Luther King, Jr., Rev. Fred Shuttlesworth, Rev. Ralph David Abernathy, Rev. C.K. Steele. Rev. Theodore Hesburgh, perhaps our own Commission’s most renowned member, was among them. “More than 900 Catholics participated in the Selma protests” and a log of out of town participants in the Selma protests included “140 priests, 50 sisters, 29 ministers, four rabbis” [footnote omitted.]
He concludes his statement quite gracefully, and for those of us living in this post-Roe era, most presciently, one thinks:
A sense of modesty, humility, and perspective should temper our remarks about those who lived before us. We are all creatures of our own time, our minds and attitudes shaped by influences and assumptions of which we are largely unaware, our actions constrained by weighty responsibilities and unacknowledged self-interest. We all like to think that had we lived in the past we would be among the few righteous. But history is plain - the visionary righteous are few. Most of us are far more likely to have subscribed to the conventional wisdom of our time, or in good faith to have been unable to see our way clear to what is now considered self-evident. We cannot know the reasons future generations will condemn us. All we can know is that they will indeed condemn us, and hope that they judge us with more charity than the Chairman does our predecessors.
I invited Prof. Bruce Frohnen to write up a few words about his and George Carey's new book, Constitutional Morality and the Rise of Quasi-Law, which I think might be of interest to MOJ readers:
For decades I argued with my late friend and colleague, Georgetown political scientist George Carey, over whether the American Constitution is a dead letter. George thought it was dead. I still believe it is not quite dead. This limited disagreement rests on a more fundamental shared understanding that is at the heart of our recently released book: American political actors no longer respect their Constitution or the institutions, beliefs, and practices that until recently supported it and were supported by it in turn.
The theme of our book is that America’s unwritten constitution—that combination of traditions, legal structures, and political customs that shape a people’s public life—no longer fits the Constitution as written. This will come as no surprise to most students of constitutional government, but its implications have long been minimized or ignored. Our Constitution was designed for a free and virtuous people leading their lives within largely self-governing families, churches, and various local associations. Our national government now is run by and for elites committed to transforming society through mechanisms intrinsically hostile to the limited government dictated by the Constitution’s plain language.
Defenders of the current regime habitually dismiss defenders of our constitutional republic as retrograde yokels pining for a bygone era of horses, buggies, and institutionalized oppression. It is time to look beyond such self-serving obfuscations to the source and effects of the hostility toward constitutional, procedural, and legal restraints on which our current regime is based.
From Woodrow Wilson, through Franklin Roosevelt’s New Deal and to this day, Progressives have demanded that the “deadlock of democracy” be broken. They have sought to undermine constitutional restraints on centralized power in the name of “doing the people’s business.” That “business” has been establishing a new order under which administrative experts will protect individuals from want, prejudice, and disapproved hierarchies.
The Framers’ Constitution aims to provide specific, limited public goods, most especially the mediation of disputes among more fundamental associations and political units—those associations and units within which people may pursue good lives in common as self-governing, free people. That Constitution maintained the rule of law and ordered liberty through formal structures and procedures requiring development of supermajority support for most significant policy changes. As the Framers knew, the Constitution’s formal structures cannot function without a supporting constitutional morality emphasizing restraint and acceptance of formal limitations on power. Checks and balances limited arbitrary power only to the extent they were applied moderately and for limited, moderate goals.
Progressivism delegitimized this constitutional morality by presenting the people’s will as the sole source of political legitimacy and by propagating the myth of a “living constitution.” Living constitutionalists claim to seek the best in our Constitution by deriving abstract principles (equality and popular sovereignty) from it, then re-defining constitutional, legal, and governmental practice accordingly. Missing in this rosy picture is the rule of law essential for popular self-government. Progressives’ hostility toward constitutional restraint has produced a system in which Congress no longer makes laws, instead “enabling” executive agencies to do so. Their judges no longer adjudicate under law, instead approving or nullifying laws, institutions, and entire traditions according to their own ideological prejudices. Progressive and even putatively conservative Presidents no longer execute laws, instead ruling by decrees including executive orders suspending immigration laws and legislative signing statements establishing new federal agencies.
The result is a regime of quasi-law. Ignoring the essential nature of a constitution as rules for the making of rules, dispensing with the separation of powers as inconvenient, and rejecting their duty to restrain both their institutional rivals and themselves from overreaching, political actors today issue directives, from whatever branch of government, that have the form and effect of law, but lack essential legal characteristics. We examine these directives in terms of Lon Fuller’s elements necessary for law’s internal morality. They lack generality, being crafted for individuals or interest groups. They fail to provide notice to the ruled because they may come from any (or all) sources of political power. They lack clarity because they allow administrators largely unlimited discretion. They are inconsistent with one another and change radically over time. And they are administered in a manner that differs wildly from that in which they are declared. Consequently, we or our associations must “plea bargain” if charged with violations; we must seek waivers from unworkable regulatory schemes; and we must appeal to the political prejudices of particular judges to defend rights (including that to self-government) guaranteed by the Constitution. From citizens we quickly are becoming subjects of a lawless regime.
This electoral season gives scant reason to hope for re-establishing a genuine rule of law. But it is important to note that we have slid this far into a regime ruled by decree through decades of misunderstanding and constitutional corruption. At root the problem is that we demand too much from our central government and too little from ourselves, as individual persons and as members of more local, fundamental associations. Lawyers and political scientists bear particular responsibility for our dilemma because they have cast aside the model of constitutionalism on which our political tradition was built in favor of one that flatters their view of themselves as experts capable of designing a more fair and just society. But just order cannot be commanded from the political center; it must grow from people’s more natural associations. The character of a people is rooted in its culture, not its politics. And if politics is made the master of culture, our political leaders will become our masters, and our freedom will disappear. Specific reforms are simple to find, for they entail use of the tools (especially the powers of veto, impeachment, and removal from office) already provided by our Constitution as written. But any possibility of improvement requires acceptance of the fact that free governments can only exist within constitutional orders that limit, separate, and aim political power in the interests of associations more natural and fundamental than the central government.
Thanks, and congrats, Bruce!
Wednesday, September 14, 2016
Here. A taste:
The commission report is called “Peaceful Coexistence: Reconciling nondiscrimination principles with civil liberties.” Its top finding is this: “Civil rights protections ensuring nondiscrimination, as embodied in the Constitution, laws, and policies, are of pre-eminent importance in American jurisprudence.”
Translation: Nuisances including the First Amendment’s “free exercise” of religion guarantee take a back seat to the rapidly multiplying non-discrimination causes such as the “right” to coerce any baker you want into baking the cake you want for your same-sex wedding.
In her own submission to the report, the commission’s Gail Heriot pinpoints the flaw in the finding. A University of San Diego law professor, Ms. Heriot says she could easily imagine a case for Mr. Castro’s position. But instead of an argument, she says, the commission offers a decree.
“By starting with an assertion that antidiscrimination laws are ‘pre-eminent,’ she writes, “the Commission’s analysis essentially begins with its conclusion. Why should anyone accept it? The Commission said so.”
I recommend readers take a look at the excellent dissenting statements from Commissioners Kirsanow and Heriot, and also the expert statements that were submitted by, among others, Prof. Michael Helfand and Prof. John Inazu.
Tuesday, September 13, 2016
Here's something I wrote for Commonweal on the upcoming presidential election.
Shorter version: Trump and Clinton are awful (yes, she is) and we should be ashamed of ourselves for nominating them. That said, she's going to win. I'm voting for neither. In any event, turn out and vote for divided government to reduce the damage to religious freedom and other important causes.
Monday, September 12, 2016
This past weekend, I attended a fascinating, rich conference at St. Hughes College, Oxford, that was organized by the International Consortium for Law and Religion Studies (ICLARS). The theme was "Freedom Of/For/From/In Religion: Differing Dimensions of a Common Right?" (more info here). Here's the blurb:
Freedom of religion or belief (FoRB), once considered to be the “first” freedom, has become a controversial right. In particular, the practical possibility of implementing FoRB in impartial ways are increasingly questioned. Critics argue that FoRB cannot deliver what it promises: an equal share of freedom for people of different or no religion. Further, it is claimed that the right of FoRB, as it is regulated in international and constitutional law, is intrinsically biased because it reflects its Western and Christian origins.
Part of the problem is due to the fact that FoRB is a complex notion, including different dimensions that require careful consideration. Freedom of religion or belief, as a right recognized for every human being, is the first dimension, but not the only one. Freedom from religion, that is the right to live one’s life without being compelled to perform religious acts, is another and freedom for religion, which concerns the institutional side of this right (what was once called “libertas ecclesiae”) is a third dimension that demands consideration. Finally, freedom in religion concerns the rights that the faithful (and sometimes not so faithful) are entitled to enjoy within their religious communities.
My own paper was called "Freedom For Religion: (Yet) Another View of the Cathedral," and in the paper I mulled over (as I have in some other places) the passages in Dignitatis Humanae that refer to the duty of the public authority to take care of the "conditions" for religious freedom and to proactively support the "religious life" of people (in ways consistent with the religious freedom of all).
What was particularly rewarding was the fact that scholars came from around the world, not only North America and Europe, and so we were able to get some perspective on the variety of challenges that religious freedom faces in different contexts. (And, it was nice to grab a pint with fellow MOJ-er, Tom Berg!)
Saturday, September 10, 2016
The Princeton Alumni Weekly has published the heart rending story of an alumna of the University who is suffering from terminal cancer and who is considering taking advantage of California's new "End of Life Option Act" which permits people in her condition to cause their deaths with drugs supplied by medical care givers for that purpose. She is a wife and mother of two who is a much admired law teacher and scholar at the University of California, Davis. I was interviewed for the story (which can be accessed here: https://paw.princeton.edu/article/lesleys-story) and some of my comments were included in it. I am here supplying the text of my complete interview. I am grateful to Carter Snead of Notre Dame Law School and John Keown of the Kennedy Center for Ethics at Georgetown whose expertise on the issue of assisted suicide I drew on heavily.
Q. Morally or philosophically, what is the argument that a person in the last stages of a terminal illness should not have the legal right to end her life?
A. I am profoundly saddened by this young woman’s terminal illness and suffering. Everything must be done for her that can be done, consistent with sound principles of medical ethics. Great strides have been made in palliative care, yet many people do not have access to quality palliative care. I hope she is not one of them. She and others who are terminally ill and suffering must never be abandoned. In the experience of many medical professionals and compassionate counselors with whom I’ve discussed these issues, the feeling of abandonment fuels despair. Many people who request medicalized killing do so because of depression, fear or despair. Indeed, studies have shown that 95% of people with suicidal ideation suffer from mental illness – 60% from treatable depression. Once their depression is treated or their fears assuaged, they change their minds. Both clauses in the anti-euthanasia slogan: “always care; never kill” are important.
Now to your question. First, we should note that killing patients, or helping them to kill themselves, has been prohibited by professional medical ethics and by the criminal law for centuries. This prohibition is grounded on a recognition of the intrinsic and inalienable dignity of every patient, however ill, however short his or her life expectancy, and however much the patient may, in his or her suffering or despair, have lost sight of his or her inherent worth. As the U.K. House of Lords Select Committee on Medical Ethics (which, though ideologically and religiously diverse, unanimously rejected the arguments for voluntary euthanasia and physician-assisted suicide) put it, the prohibition on intentional killing is the “cornerstone of law and of social relationships” which “protects each one of us impartially, embodying the belief that all are equal.” A New York State ethics committee (appointed by then-Governor Mario Cuomo) composed of individuals who supported assisted suicide in principle nevertheless unanimously recommended against legalization because of the unavoidable risks of fraud, abuse, duress, and mistake that would fall disproportionately on the poor, elderly, disabled, and stigmatized minorities. This is one key reason (among many others) why the American Medical Association, the World Health Organization, disabilities rights groups, the Boston Globe editorial page, Victoria Reggie Kennedy (health advocate and widow of the late Senator Edward M. Kennedy), and Obama administration health advisor Ezekiel Emanuel all oppose legalization of assisted suicide.
Opposition to medicalized killing is grounded in a recognition of the equality-in-dignity of all—the idea that no one has “a life unworthy of life,” or is “better off dead” or a “useless eater.” It reflects the belief that nothing should be done that gives credit to or encourages the adoption of these beliefs, even by those suffering pain and tempted to despair. It is no accident that the disability movement has been in the forefront of opposition to legalizing assisted suicide. Disabled people are among the most aware of the dangers of compromising the equal dignity principle and moving in the direction of judging the worth of people by their “fitness.”
Second, I notice that you’ve framed the question in the language of “rights.” I think that’s a mistake. The question whether we should allow medicalized killing and, if so, in what form and subject to what conditions and constraints, is inherently a social question. It has massive (and complex) implications for the whole of society, not least the medical profession and those, like the frail elderly, those afflicted by dementias, and the dying, who could so easily be judged to have lives that are no longer ‘worth living’. All of those implications must be carefully considered. Framing the question in the language of ‘rights’ tends to obscure them.
To mention just a few implications of changing the law, what would be the broader social impact of the abandonment of the ‘sanctity of life’ ethic? (This ethic, which has been foundational to our law and culture, does not require that life be preserved at all costs, but it does oppose intentional killing.) How would legalization affect the professional self-understanding of physicians, nurses, and other health care professionals? How would it affect patients and their sense of obligation to family and society? How would it affect family members’ attitudes and their sense of what is reasonable and right in interacting with and in shaping (and even incentivizing) the decisions of their dying relatives? What would be the impact on the poor, the uninsured, the cognitively or physically handicapped, and other especially vulnerable people---people whose lives others sometimes regard as being of lesser value?
Q. The California statute (modeled on Oregon's) seems to be very carefully drawn to limit its application. It only covers persons who are expected to die within six months, as certified by two physicians--persons entitled to begin hospice care, in other words. They must submit multiple requests in writing, with a waiting period in between. Physicians are not required to participate and indeed are forbidden from administering the life-ending drugs themselves; the patient must be able to do that. The slippery slope fears--that the law would permit impulsive suicide by someone with a diagnosis of, say, early-onset Alzheimer's, or an athlete rendered a quadriplegic in a car accident--would not seem to apply. Does this matter?
A. The Oregon statute, and statutes, like California’s, that are modelled on it, are not “very carefully drawn,” in my opinion. Professor Alexander Capron, one of the leading US health lawyers, has described the Oregon safeguards, as “largely illusory.” We simply do not know very much about what goes on in Oregon, as there are no effective means for data collection and no mechanisms of enforcement in response to noncompliance. The agency in Oregon responsible for administering the law has admitted as much, and has conceded that they are unable to verify that the data is free from misinformation. The Oregon law does not require mandatory psychiatric evaluations (despite the fact that a vast majority of people with suicidal thoughts suffer from treatable depression). It does not require doctors prescribing the lethal drugs to be expert in recognizing treatable psychiatric illness. It only requires doctors to refer patients for such evaluations if they suspect “impaired judgment.” The Oregon Assisted Suicide Handbook states that the presence of depression does not necessarily indicate impaired judgment. And doctors affiliated with pro-assisted suicide advocacy group “Compassion and Choices” (formerly “The Hemlock Society”) – 97% of whom prescribe lethal PAS drugs in Oregon – have stated that they regard depression as a fitting response to terminal illness. In contrast, a majority of psychiatrists polled believe that clinical depression should result in an automatic finding of impaired judgment. Relatedly, the Oregon law does not require an assessment of competency or voluntariness at the time of self-administration of the drug. Indeed, there is no requirement that a doctor (or any witness) be present at all.
There is also no requirement to consult with relatives to confirm the absence of coercion or undue influence by relatives or other parties who, for all anyone knows in any particular case, may stand to benefit or be relieved of burdens of one sort or another by the patient’s death. Neither does the Oregon law require an automatic referral for pain management, despite the fact that badly managed pain is an obvious reason why one might seek assisted suicide.
Nor does the Oregon law require the prescribing doctor to be trained in identifying or treating pain – a complex and increasingly specialized form of medical practice. Oregon rates very poorly among states in terms of its efficacy in managing patients’ pain, and its rating has declined since legalization of PAS. The Oregon law requires a diagnosis of “terminal illness” (a life expectancy of 6 months or less) for PAS eligibility. But it does not specify whether this is an assessment of the patient’s prognosis with or without life sustaining interventions. That is, pneumonia in an otherwise healthy patient could be considered a “terminal illness” if left untreated. Diabetes is a “terminal illness” without insulin. Moreover, calculating life expectancy is famously difficult with one study showing over 70% of patients deemed eligible for hospice care (using the same definition of “terminal illness” as an eligibility criterion) lived more than 6 months. The small amount of concrete data we do have from Oregon is quite worrisome. Only a small percentage of patients have been referred for psychiatric evaluations – a fraction of the 60% of the total population of suicidal patients suffering from treatable depression. There is no data collected on the outcomes of these evaluations. Only 13% of patients have been referred for pain management evaluation.
Moreover, even these insignificant limits will not, in any event, hold (just as they have failed to hold in other jurisdictions that have relaxed their laws, most notably the Netherlands and Belgium). People will argue—successfully—that if autonomy (or the right to moral independence, or whatever principle is cited as the basis of a right to assisted suicide) should be respected in the case of the terminally ill, it should be respected in the case of the non-terminally ill, who may have many years, not merely a few months, of physical or emotional suffering to endure. And since it will be presented and understood precisely as a right, the argument will successfully be made (1) that it should be available by way of substituted judgment (by a guardian or court) for people who cannot choose for themselves to exercise it, and (2) that medical professionals have an ethical duty to provide it even if they have religious or other conscientious objections to participating in assisted suicide. Further, (3) as there is obviously no moral difference between a physician supplying a patient with a lethal drug for her to kill herself (physician-assisted suicide) and a physician intentionally administering a lethal drug to the patient (euthanasia); as some patients are physically unable to end their lives even with assistance; as assisted suicide not infrequently fails to end life promptly; and as some patients would much prefer an injection to a prescription, it is only a matter of time until states like Oregon decide to permit euthanasia. The change may well come in the form of a judicial ruling that the current law discriminates against those too disabled to commit suicide, even with assistance.
Q. Is there a moral difference between a terminally ill cancer patient choosing to end her life by taking pills and one who refuses further medical treatment knowing that that refusal will lead to death?
A. The reason traditional medical ethics accepted a right to refuse life-sustaining medical care yet rejected assisted suicide and euthanasia is not obscure. There is a key difference between, on the one hand, intending death (one’s own or another) as an end-in-itself or as a means to some other end, and accepting death as the side-effect of an otherwise morally legitimate act. It is ethical for physicians to administer life-saving drugs to patients, foreseeing their bad side-effects. It is unethical for them to do so intending those bad side-effects. This distinction applies to life and death matters in war and elsewhere, and not just in the field of medical ethics.
Every day patients reject a treatment, even a life-saving treatment, as excessively painful or burdensome or expensive without making death their direct aim. It is parallel to accepting the death of innocent civilians as an unavoidable side effect of an otherwise morally justified military action. (There is a morally significant difference between General Eisenhower ordering the allied troops in on D-Day, foreseeing many of them will be killed, and King David ordering Uriah the Hittite into battle intending him to be killed.)
The Dutch, the pioneers of legalized euthanasia, agree that euthanasia involves intentional killing, not merely the foreseen and accepted shortening of life as the result of actions aimed at, say alleviating pain.
Q. The woman I am writing about--and others I have spoken to--are adamant that this is not "assisted suicide." Suicide, they say, presupposes a choice between life and death. In their case, their death is certain and imminent. They are simply choosing the time and manner of that death in order to avoid suffering or maintain control over their fate. How do you respond to this?
A. It’s a noble impulse that this woman wishes to reject suicide or find a way of distinguishing the policy she is defending from assisted suicide. Even in her suffering she wants to uphold the sanctity of life ethic by rejecting suicide. But the definition of suicide is performing an act with the intention of causing one’s death. In jurisdictions all over the world, if one assists another in causing his or her death, one commits the crime of ‘assisting suicide’. It is ‘assisting suicide’ irrespective of the victim’s life expectancy - whether the victim had only a month, a week or even an hour to live - and irrespective of the victim’s motive for seeking death. Similarly, if a defendant is charged with murder for administering a lethal injection in order to stop another person suffering, it will not avail the defendant to claim: “It wasn’t homicide, because the victim’s death was certain and imminent, and in injecting the poison I was only choosing the time and manner of his death to stop him suffering.”
Q. Many opponents of these laws argue that there is dignity in suffering and that those who suffer set a positive example for the rest of society. I remember that this was written about Pope John Paul II during the last years of his life. Surely, though, I am entitled to find dignity in my own suffering, but do I have a right to demand that you find dignity in yours? If another person would rather avoid that suffering and escape a prolonged and painful end, shouldn't he have that right?
A. How we deal with our suffering and find meaning in it, if we can, is up to us. No one can do that for anyone else. Nor can anyone demand that others find meaning in suffering. That is not the question. The question is whether we should allow physicians to kill patients, or help patients kill themselves, as a means of ending suffering or despair. That is a policy question that implicates many aspects of the common good of our civil society and legal order. It is not a religious question (like the question of whether there is a God, whether God spoke to Moses from a burning bush, whether Jesus is the Son of God, whether Mohammad is God’s prophet, etc.). Given the advances in palliative medicine in recent decades, such as the founding of the Hospice Movement in the UK by Dame Cicely Sanders, the case for assisting suicide to alleviate suffering has never been weaker. Palliative medicine has never been better able to alleviate suffering in the vast majority of cases. Even in the few cases of refractory suffering, there is the option of palliative sedation to render the patient unconscious.
Q. In Oregon, it appears that fewer than half the people who obtain a prescription for life-ending drugs actually use it. In many cases, people simply seem to want the assurance that they CAN end their life if their suffering becomes too great, and that once they have that assurance they are often more willing to let nature take its course. Does this affect your views in any way?
A. The large number of prescriptions for lethal drugs which are never is not really reassuring. It suggests prescriptions are being written for people who are not suffering unbearably. Indeed, as the annual official reports from the Oregon Health Authority show, suffering is not in any event the main reason that people have accessed physician-assisted suicide there. The two main reasons have been ‘losing autonomy’ and being ‘less able to engage in activities making life enjoyable’. And in the Netherlands and Belgium, there is now considerable support for suicide pills for old people who are simply ‘tired of life’. This is the royal road down which medicalized killing, sooner or later, takes a society. Hard cases make bad law
Q. Can you recommend any further reading I should do on this subject?
A. Emily Jackson and John Keown, Debating Euthanasia (Hart Publishing, 2012)
Neil Gorsuch, The Future of Assisted Suicide and Euthanasia (Princeton University Press, 2009)
Herbert Hendin and Kathleen Foley, The Case Against Assisted Suicide: For the Right to End of Life Care (Johns Hopkins University Press, 2004)
John Keown (ed), Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge University Press, 1995)
September 10, 2016 | Permalink
Wednesday, September 7, 2016
The title of this post is the headline of a recent LifeNews article. I have not viewed the film, but I have no reason to doubt that HBO is pushing assisted suicide. Perhaps that is because I've come to believe that Madison Avenue matters more than Madison when it comes to the development of constitutional law. And I could be wrong about that.
I write now, though, to note something troubling about the language in the article. Here's the key paragraph:
As in many similar documentaries, the producers had their minds made up on the issue before they began to explore it, and so neglected to portray the arguments against assisted suicide and euthanasia fairly. They played upon public fears of becoming disabled, using the term “dignity” as the opposite of disability, and implying that the only way to retain control in one’s life was to have assisted death.
The content makes sense. It is a criticism of the producers for being one-sided and for playing upon peoples' fears. But notice the last phrase in the last sentence: "assisted death." That is a euphemism for assisted suicide. Its migration to an anti-assisted-suicide article is cause for concern.
I've just ordered Prof. Melissa Moschella's (CUA, Philosophy) new book, To Whom Do Children Belong? Parental Rights, Civic Education, and Children's Autonomy. (It's good timing, since I will be talking this afternoon about Justice Douglas's troubling opinion in the Yoder case!).
The book is reviewed by Prof. Chris Tollefsen here, at Public Discourse. Here are the opening paragraphs of that review:
Melissa Moschella begins her new book on parents’ rights and children’s education with a quotation from Melissa Harris-Perry that might be familiar toPublic Discourse readers: “we have to break through our kind of private idea that kids belong to their parents or kids belong to their families and recognize that kids belong to whole communities.”
The implications of such a claim are breathtaking. If Harris-Perry is right, where the rearing and educating of children are concerned, the community—and in particular, the political community—should determine both the ends of such care and education and the means to be pursued. The community, in other words, possesses primary authority. Even if that authority is not complete—if, for example, parents also have some authority over their children—such familial authority is at best only partial, derived from an implicit grant from the state.
Such claims strike traditionally-minded persons as outrageous. They seem to be precisely backwards—the reverse of what is true. Families, we think, are prior to the state, which exists to protect families. Within families, parents have primary authority over their children, and even if that authority is partially shared with the state, the primary role of the state is to help parents, not to take over tasks that are properly parental.
Moschella’s book is a vigorous defense of this traditional view.
I have posted a new paper, Religious Accommodation, Religious Tradition, and Political Polarization (UPDATE: link fixed). It's likely to generate disagreement from those on all sides of this issue. Though my subject is not the same as Professor Muñoz's, the two are related in several ways, and I'll have a post or two about the connections soon. Here's the abstract:
A religious accommodation is an exemption from compliance with the law for some but not for others. One might therefore suppose that before granting an accommodation, courts would inquire about whether a legal interference with religious belief or practice is truly significant, if only to evaluate whether the risk of political polarization that attends accommodation is worth hazarding. But that is not the case: any assessment of the significance of a religious belief or practice within a claimant’s belief system is strictly forbidden.
Two arguments are pressed in support of this view: (1) courts have institutional reasons for acquiescing on the burden question; and (2) courts have anti-establishment reasons for doing so. Courts, it is said, do not decide about the quality of religious burdens. Claimants do that. Courts defer so as to reduce the political polarization that might result if some should perceive that their religious beliefs and practices are comparatively powerless to obtain exemptions. Deference on the burden question preserves the religious neutrality of courts and mitigates the politically polarizing dangers of accommodation.
This essay contests that view. It argues that this approach to religious accommodation has generated considerable difficulties of its own that have aggravated the political polarization they were intended to reduce. Political polarization is now a pervasive feature of religious accommodation, but this essay focuses on only some explanations for this unfortunate state of affairs—those that relate to the antagonistic relationship between religious accommodation and established religious groups and traditions.
First, hyper-deference as to the burden on religion systematically undermines the view that religions are institutional phenomena with established, stable, and longstanding traditions. In doing so, it damages the argument that courts are institutionally incompetent to evaluate religious ideas. Claims about the institutional incompetence of the judiciary to inquire into religious burdens proceed on the assumption that there is something unique—and intelligibly unique—about religious beliefs and practices that make them different from, say, individual foibles, fraudulent schemes, flights of fancy, or private predilections. Arguments about the judiciary’s institutional incompetence as to religious questions contemplate the existence of other institutions that are competent as to those questions. Lacking such other institutions, the institutional competence of courts to evaluate religious claims is greatly strengthened. Courts are perfectly competent to evaluate fraud, idiosyncrasy, gibberish, and personal preference. Yet when courts are disabled from evaluating some varieties of idiosyncratic eccentricity (denominated “religious”) but not others (not so denominated), then “religion,” and therefore religious accommodation, is bound to be politically polarizing. The category of religion, having been stripped of its institutional character for legal purposes, designates nothing coherent at all. And people begin to suspect with some justice that decisions about accommodation are being made on the basis of other reasons altogether.
Second, the hyper-deferential approach to religious accommodation assumes and promotes a particular and decidedly non-neutral view of religion as irrational and utterly incomprehensible to anybody other than an individual believer. Accommodation is not for established religious groups or traditions—groups that are organized, enduring, and that might offer substantial resistance to prevailing political and cultural orthodoxies. Accommodation is for the exotic, the personal, the unthreatening, and the peculiar. That view is part of the heritage of the highly individualized, subjective approach to religion steadily constitutionalized by the Supreme Court since the mid-twentieth century, and that now seems to be the foundation of one powerful strain of the contemporary cultural understanding of religion in America. It is a view whose promotion in law has profoundly entangled the state with religion. The refusal of courts to make any serious inquiry into the nature of the asserted religious burden has encouraged increasingly aggressive, self-indulgent, and ephemeral assertions of religious freedom. It will—and indeed, it already has—promoted unserious religion. Small wonder that religion as a legal category is in such disreputable odor. Small wonder that religious accommodation is increasingly perceived in politically partisan terms.
Tuesday, September 6, 2016
Over at the Law and Religion Forum, my colleague Mark Movsesian and I are hosting an online symposium over the next month or so on Professor Vincent Phillip Muñoz's paper, "Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion." Phillip's complete paper was recently published in the American Political Science Review, but he summarizes it nicely in this opening post. Here's a bit to give a general flavor of the argument:
The founders rejected the language of toleration, because toleration presumes that the state possesses legitimate authority over religious exercises. Instead, the founders recognized that the right of religious liberty inheres in the individual prior to state recognition. Individuals possess a right of religious free exercise on account of their created nature and their pre-political obligations to God. That is why it is a natural (as opposed to an acquired) right....
That the founders understood worship according to conscience to be an inalienable natural right can be seen in the founding-era state declarations of rights, the founders’ philosophical defenses of religious liberty—including Jefferson’s Virginia Statute for Religious Liberty and Madison’s Memorial and Remonstrance—and in influential political sermons of the time....The inalienable character of the individual’s authority over worship meant that the state could never legitimately acquire sovereignty over religious exercises per se.
Religious exercises, accordingly, remain beyond the jurisdiction of government. This means that state officials lack legitimate authority to directly prohibit, mandate, or otherwise regulate religious exercises as such....[T]his lack of sovereignty also means that judges—who, too, are agents of the state—lack authority to balance elements of the inalienable natural right to religious liberty against other state interests. The act of balancing itself assumes jurisdiction: The “balancer” places competing rights and interests on a scale. Even if the scale is tilted toward religious freedom (as it is under the Sherbert Test), the act of weighing assumes an authority that the founders deny. Judges may not exercise such authority because the state itself lacks jurisdiction over religious exercises as such....
Largely because of Sherbert, we tend to think that any belief or action motivated by religion falls within the First Amendment’s protections. The founders’ understanding is more nuanced and more limited. The founders distinguished core inalienable elements of religious free exercise from what we might call religious “interests.”
The inalienable core includes the “freedom to embrace, to profess, and to observe the Religion which we believe to be of divine origin,” to use Madison’s language from Article 4 of the Memorial and Remonstrance. These core elements of religious worship remain beyond the state’s direct jurisdiction. Religious “interests” include activities of faith that fall within the state’s otherwise legitimate sovereignty. When exercising its legitimate authority and pursuing otherwise legitimate civic ends, the state may burden religious “interest.” It also may relieve burdens on religious “interests” through discretionary exemptions....
If the Free Exercise Clause only protects against direct state restrictions on and regulations of religion, what protections does it really offer?
[My response is] that the founders’ understanding does not protect against “indirect” religious burdens—that is, laws and regulations such as a military draft that do not target or mention religion as such but, when implemented, burden some religious individuals or institutions. I must acknowledge that, in the context of our modern regulatory state, the founders’ natural rights understanding may not seem adequate to protect against all the different ways the state encroaches on the lives and interests of religious individuals. This observation, I note, is what led Justice William Brennan to eschew the framers’ approach and adopt the Sherbert Test over fifty years ago.
Whether the founders’ approach is adequate for our times, however, is a different question from what the founders’ approach is. In the larger context of human history, moreover, denying the state authority over religious exercises is a monumental achievement in the service of human freedom. We often speak of “limited government.” We do not often remember that the fundamental limit the founders imposed on government was to deny it religious authority. That American governments still do not typically attempt to directly prohibit, prescribe, or regulate religious exercises is a testament to the founders’ achievement. We need only to look to the Middle East to appreciate what the founders bequeathed us....
Church-state scholars are so accustomed to assuming that the right of religious liberty means exemptions that we tend to fail to consider the obvious alternative: that the state may not prohibit or otherwise regulate religious exercises as such. The founders did not share our presumptions. At the level of constitutional design, rather than having judges protect religious liberty via the superintendence of allegedly burdensome state action, they sought to demarcate that a relatively narrow but profoundly important area of human life remained outside of the sovereignty of the state.
Stay tuned for responses from Gerard Bradley (Notre Dame), Donald Drakeman (Cambridge), Matthew Franck (Witherspoon Institute), George Thomas (Claremont McKenna), Jack Rakove (Stanford), and Corey Brettschneider (Brown), with a final reply by Phillip thereafter.
Saturday, September 3, 2016
A follow-up to this post: David Gushee insists, in this (strikingly defensive and sarcastic) "response to his critics," that he was only describing the "collapse of middle ground" on LGBT issues and religious freedom, and predicting various developments, in this post. Decide for yourself, of course, but I think his original post pretty clearly reads like he's welcoming and endorsing what he's describing. In any event, this response, by George Guthrie (Gushee's former colleague at Union University) is worth a read. Guthrie asks, in a John-Inazu-esque vein, "[i]s it possible to embrace appropriate distinctions between social equality and uniformity of beliefs?" I hope so.
Thursday, September 1, 2016
This essay, at The Atlantic, is worth a read.
A challenge, for a Catholic university, it seems to me, is to encourage policies and pedagogical practices that do not uncritically mimic the AAUP's understanding of academic freedom or John Stuart Mill's idea of free speech, that are consistent with and conducive to civility, charity, respect, and humility, and that protect the expression of ideas, views, claims, and arguments that, while they might run counter to the orthodoxy of the moment are nevertheless in keeping with both the Truth that has been revealed and the Truth that we are called and made to pursue.