Mirror of Justice

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Wednesday, July 23, 2014

Arkes replies to Garnett re: RFRA, Hobby Lobby, etc.

Prof. Hadley Arkes asked me to post the following reply to my recent post, and I am happy to do so:

I’d like to respond to a couple of the concerns that Richard Garnett raises in his post today on my arguments about Hobby Lobby.   I need to recall to him and my other friends that I have been thoroughly sympathetic to the use of RFRA.  What I've argued is that RFRA is apt and useful because it creates, for the religious, that zone in which the government would have to bear a heavier burden of justification when it restricts personal freedom.  The saving grace of RFRA is that it secures, for the religious, the kind of protection that the courts used to offer more fully for many others when the judges were far stricter in testing the justifications for laws that restricted private rights.

But as Garnett rightly says, my own view [is] that the case could have been argued on deeper foundations.  One friend of mine, experienced in litigation on religion, argued that Hobby Lobby could have been argued even more clearly on the Takings Clause.  Richard Epstein and the libertarians would invoke principles of freedom of association in fending off these intrusions into a private family arranging its private business.   Are they wrong for conceiving other ways of arguing the same case?  What I've been pointing out is that these arguments, draw from the principles of a regime of law,  are not diminished moral arguments. For they draw their meaning from the understanding of the "human person," a term given deeper resonance by our religious teaching.   Only those beings we call “moral agents” can impart a moral purpose to inanimate matter;  and so yes, it is no trivial matter to justify the restrictions placed on these kinds  of beings, as they seek, even in prosaic matters, to honor their own understanding of the ways of life rightful for them.  My pitch has been that if we begin from the classic understanding of the moral ground of the law, and the burdens of justification that the government should rightly bear, we will have provided an even former moral grounding for religious freedom.

But I have a question in turn:  Garnett says that he doesn’t agree with my argument against a “right to be wrong,” but he never sets out that argument or actually explains why it is wrong. 

He also cites this passage of mine in which I sought to bring together the strands of the argument that, taken together, would have a powerful effect in striking at the very ground of the law:

I’ve argued … that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion;  that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”

Now I’m curious:  Have I not given an accurate account the strands that have actually been woven through these cases?  If I have any of these wrong, I would be glad to find out that I’m wrong. But if those strands are there, as I’ve marked them out here, why would they not be the carrie[r]s of principles quite destructive for the laws?

Forgive me one more point on a question I posed in First Things, and which I haven’t seen addressed yet:   

The Catholic Church doesn’t argue on abortion by appealing to revelation or belief.  It argues in the reasoning of natural law, a combination woven of embryology and principled reasoning.  And so I raised the question of whether the protections here under RFRA would apply to the Catholic businessman, reasoning on the matter in the style of the Church, but not to the businessman who uses precisely the same moral reasoning used by the Church, even while he disclaims any religious affiliation?   As I've pointed out, this was exactly the problem faced by Congress in the Civil Rights Restoration Act of 1988:  Would they give an exemption only to religious hospitals in sparing them the obligation to perform abortions?  Or would they honor also the moral objections of those hospitals that were morally opposed to abortions but had no religious definition?

One could simply say, I suppose:  yes, we are simply working with the positive law, which offers its protections here only for the religious under RFRA. The others may have to seek a remedy in other ways.  But that hardly gives a coherent moral account of the jurisprudence we are shaping.

Arkes' reply clarifies nicely one of our disagreements.  He says that "the case could have been argued on deeper foundations" and, in response, I say, "no, it could not."  The "Takings" and "freedom of association" arguments that Arkes mentions are, at the present time and given the current legal givens, losing arguments (regardless of how deep their foundations go and regardless of their moral appeal).    

Next, Arkes says "Garnett says that he doesn’t agree with my argument against a 'right to be wrong,' but he never sets out that argument or actually explains why it is wrong."  This is true.  Such an explanation didn't and does not seem (to me) necessary, as it was provided in Ryan Anderson's response to Arkes (and, I think, in Dignitatis Humanae).   

Third, Arkes writes:  

One could simply say, I suppose:  yes, we are simply working with the positive law, which offers its protections here only for the religious under RFRA. The others may have to seek a remedy in other ways.  But that hardly gives a coherent moral account of the jurisprudence we are shaping.

Once again, I think Arkes has helpfully identified our clear disagreement.  I would "simply" say precisely what Arkes says, above.  The question whether a "coherent moral account" can be given of our current positive-law arrangements regarding religious freedom is an interesting and important one, but that question is (very) different from ones having to do with the arguments to be made in real-world, present-day courts, to judges charged with interpreting and applying not first principles of morality but unsurprisingly imperfect statutes and doctrines.

July 23, 2014 in Garnett, Rick | Permalink

MOJ joins Law Professor Blogs Network

After ten years . . . I am really happy to announce that, as of today, Mirror of Justice is now part of the Law Professor Blogs Network, and I am very grateful to my friend and longtime MOJ supporter and reader, Paul Caron, for inviting us aboard.  I hope MOJ readers like the new "look" and that you'll all continue to check in, and spread the word!

July 23, 2014 in Garnett, Rick | Permalink

Genocide of Christians in Mosul -- and crickets

The Islamic terrorist group ISIS has recently rebranded itself (in Western fashion) as the Islamic State.  We mustn't let this self-promotion lull us into any illusions of legitimacy, however.  This terrorist organization has declared war on the Christians of Mosul.  The Christians in Mosual must convert to Islam, pay vast fines, or be killed -- or, in one last indignity, be robbed (of their crucifixes) as they flee for their lives.  The story is here

Pope Francis has repeatedly condemned this persecution, and the U.N. Secretary General Ban Ki-Moon has declared it a crime against humanity.  What the terrorists known as the Islamic State are accomplishing in Mosul is without a doubt genocide within the meaning of the Convention on the Prevention and Punishment of the Crime of Genocide, which was signed in 1948 and took effect in 1951.

Yet where is the White House in all of this?  Why has President Obama not condemned *this* genocide?  

President Obama needn't start by calling it what it is, that is, genocide.  He could start by, say, actually acting to enforce the International Religious Freedom Act of 1998.  Yes, yes, I recognize that "religious freedom" doesn't do conceptual justice to genocide, but "religious freedom" doesn't itself do justice to the essence of true religion, yet nearly everyone in the West seems to be on board with "religious freedom," at least nominally.  And so, when will that great champion of "religious freedom," the USCCB, bestir itself to condemn this epochal violation of religious freedom and perhaps even call the Catholics of the United States to prayer and penance in solidarity with their persecuted brothers and sisters in Christ?

The Syrian Catholic Archeparchy in Mosul was burned to the ground the other day as a part of the ongoing purge.  What traces of ancient Christianity will be left in Iraq when U.S. (and other Western) foreign policy has run its course there?  I think the terrorists there know the answer, which no doubt emboldens them still further.    

July 23, 2014 in Brennan, Patrick | Permalink

J. Doig responds to R. George's criticisms of his marriage revisionism

Today at Public Discourse, my Princeton colleague Jameson Doig defends his revisionist understanding of marriage against the criticisms I advanced yesterday in our week-long debate about the nature of marriage. 


This begins round two of our debate.  Tomorrow, I will respond to Professor Doig's latest effort. Then on Friday we will post a joint essay taking stock of the debate.

July 23, 2014 | Permalink

Tuesday, July 22, 2014

What difference would it have made if "the First Amendment" included explicit textual protection for "conscience" as well as "religion"?

One interesting question that came up during the Q&As following the first set of papers at this year's Annual Law & Religion Roundtable was something like the one set forth in this post's title. My rendition of it puts "the First Amendment" in scare quotes because a full answer to the question requires challenging the nomenclature of "First Amendment." (Indeed, I am not sure that we have properly understood the distorting effects on our understanding of what the first set of constitutional amendments intended to accomplish that result from the fateful decision to tack those amendments on to the end of the document rather than interpolating them into the particular provisions being amended. But that is a topic for some other days.)

To know what difference it might have made to include explicit conscience protection in the Constitution as initially amended, we have to know the form that conscience protection would have taken. Leading candidates would be those included in James Madison's proposals. And that plural is correct: Madison simultaneously proposed two different amendments that included explicit "conscience" protection. 

One of these proposals protected against federal government action while the other protected against state government action. The first was intended for Article I, Section 9: "That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. . . .”). The second would have gone into Article I, Section 10: “Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”

Attention to the different wording and proposed locations of these provisions provokes a couple of thoughts. First, "religious belief" is a distinct concept from "equal rights of conscience." Second, there would be no establishment clause-type limit on accommodations for conscience at either the federal or state level. The reason for no such limit at the federal level is that there was no "establishment clause" other than the prohibition against establishing a "national religion." And the reason for no such limit at the state level is that there was no establishment clause at all for the states.

(Perhaps for the sake of completeness, it is worth noting another proposed amendment that protected a form of conscientious objection but did not use the word "conscience": "[N]o person religiously scrupulous of bearing arms shall be compelled to render military service in person.")

July 22, 2014 | Permalink

Hadley Arkes on Hobby Lobby, "belief", and religious freedom: A response

As Mirror of Justice readers probably know, Prof. Hadley Arkes contributed a piece to the June issue of First Things called "Recasting Religious Freedom."  In that piece (and in some others) he expresses (among other things) concern not about the result in the Hobby Lobby case but in the arguments and premises on which (he thinks) many of Hobby Lobby's supporters have relied.  He is worried, for instance, that the arguments pressed by Hobby Lobby's defenders have emphasized the extent to which the contraception-coverage mandate burdens religious "beliefs" and that these defenders have uncritically accepted what he regards as an unsound claim, i.e., that there is a "right to be wrong."  

He returns to this general line of thinking in this piece ("Post-Hobby Lobby Illusions") and this one ("Backing Happily Into Heresy").  And, in these posts, he is responding to (among other things) Ryan Anderson's critique, "The Right to Be Wrong."  Ryan wrote:

. . . Arkes is a friend and mentor of mine. He is a hero of the pro-life cause and has been a bold voice for moral sanity in the academy. When he speaks, and especially when he offers fraternal correction, one must listen and carefully consider what he has to say. Yet in this case, I cannot ultimately follow his lead. . . . 

I agree.  Arkes' First Things piece and the more recent ones to which I have linked are, in my view, mistaken in several respects.  I won't repeat Anderson's arguments -- which I think are compelling -- but will just share a few thoughts in response to Arkes' expressions of concern.

First, Arkes writes:

I’ve argued in these columns that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion;  that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”

Here, I think that Arkes is wrong.  It is not the case -- given the relevant real-world givens -- that the Hobby Lobby case "could have been won" using the argument that Arkes suggests, i.e.:  "In a regime of freedom, people have a presumptive claim to all dimensions of their freedom, and the burden lies with the government to offer a 'justification' for restricting that freedom."  Over and again, in the First Things piece and in the others, Arkes seems to be frustrated that Hobby Lobby's lawyers and defenders made the arguments that the relevant pieces of positive law invited -- it's probably fair to say "required" -- them to make.  It could well be that the Religious Freedom Restoration Act does not capture fully or well the real and true foundations of religious freedom, properly understood.  But, nevertheless, the Act is the Act, and for Hobby Lobby to win, Hobby Lobby's lawyers needed to argue -- and would have been foolish not to argue -- that the Act entitled them to win.  

Next, in "Backing Happily into Heresies" (here), Arkes appears to be arguing that Gregory Holt should lose his RLUIPA case (which the Supreme Court will hear next Term).  (Disclosure:  I signed an amicus brief supporting Holt, who is represented by Prof. Doug Laycock.)  When "we" argue that Mr. Holt's religiously motivated desire to wear a beard is one that current, valid, governing positive law recognizes and protects, we are -- Arkes says -- "walking in a haze, celebrating along the way, and backing happily into heresies, political and religious."  Specifically, we are mistakenly buying into the idea that "we cannot judge the content of beliefs, or test them by the standards of reason we bring to anything else."

But, again:  There is a piece of duly enacted legislation, RLUIPA, the meaning and implication of which is at issue in the Holt case.  And, according to that legislation, it is not a mistake, but is rather clearly and obviously the right thing to do, to put aside the business of judging the "content" of or otherwise "test[ing]" the truth or Holt's religious beliefs.  What matters is whether or not the challenged official action substantially burdens a sincerely held religious belief and, if so, whether that burden is adequately (within the meaning of RFRA) justified.  

Now, I imagine that there is a connection, or significant overlap, between (a) egregiously and dangerously misguided religious beliefs and (b) religious beliefs that the government is justified in burdening.  But, again, I do not understand why Arkes seems to be insisting that lawyers with a job to do should do something else.  (I also think it is wrong -- and contrary to Dignitatis Humanae -- to contend, as Arkes appears to contend, that the right to religious freedom does not include the right to hold and -- within the limits imposed by public order and the common good -- express and act upon religious convictions that are unreasonable or untrue.)

July 22, 2014 in Garnett, Rick | Permalink

Henry Garnet, S.J., the sacrament of confession . . . and Louisiana

This piece, "Uncle Same Eavesdropping Outside the Confessional," by Aaron Taylor, at First Things, is well worth a read.  Discussing a current controversy in Louisiana, Taylor explains why "[c]ompelling Catholic priests to violate the confessional is not only bad for the Catholic Church, but bad for America."  And . . . he gets to invoke Fr. Henry Garnet's martyrdom along the way.  

July 22, 2014 in Garnett, Rick | Permalink

Inazu on religious freedom, antidiscrimination law, and pluralism

John Inazu has a very good piece up at Christianity Today, "Religious Freedom v. LGBT Rights?  It's More Complicated."  In a nutshell:

First, we must understand the history from which they emerge. Second, we must understand the legal, social, and political dimensions of the current landscape. Third, and finally, we must recognize that arguments that seem intuitive from within Christian communities will increasingly not make sense to the growing numbers of Americans who are outside the Christian tradition.

After sharing several predictions -- including the troubling "Fewer people will value religious freedom" -- Inazu develops the following point:

If I am correct about these three predictions, then arguments rooted in religious exceptionalism will see diminishing returns. There is, however, a different argument that appeals to a different set of values. It's the argument of pluralism: the idea that, in a society that lacks a shared vision of a deeply held common good, we can and must live with deep difference among groups and their beliefs, values, and identities. The pluralist argument is not clothed in the language of religious liberty, but it extends to religious groups and institutions. And Christians who take it seriously can model it not only for their own interests but also on behalf of their friends and neighbors.

Pluralism rests on three interrelated aspirations: tolerance, humility, and patience. . . .

. . .The argument for pluralism and the aspirations of tolerance, humility, and patience are fully consistent with a faithful Christian witness. And in this age, they are also far likelier to resonate than arguments for religious exceptionalism. The claim of religious exceptionalism is that only believers should benefit from special protections, and often at the cost of those who don't share their faith commitments. The claim of pluralism is that all members of society should benefit from its protections. . . .

Inazu's claim about the declining "resonance" of "religious exceptionalism" arguments is, I suspect, accurate as a descriptive matter.  And yet . . . religion is special, and our Constitution, laws, and traditions treat it as special.  Stay tuned.

July 22, 2014 in Garnett, Rick | Permalink

Monday, July 21, 2014

My Round One reply Jameson Doig on the nature of marriage

This morning I posted Jameson Doig's opening salvo in the debate on marriage that he and I are conducting this week at Public Discourse.  Here is my reply:


Each of us was given 2500 words for our opening contributions. On Wednesday, Professor Doig will reply to my reply.  On Thursday, I will complete round two with a reply to his reply to me.  For this round, each of us will have 1500 words.  On Friday, we will post a joint essay reviewing our debate.

For interested readers who have not yet read Professor Doig's opening contribution, here is the link. (Since I am replying to him, it makes sense to read his contribution first.)


July 21, 2014 | Permalink

Review of Steve Smith's Rise and Decline of American Religious Freedom

I've got a review of Steve's book over at The University Bookman. A bit from the beginning:

In legal scholarship, as in any literature, style matters as much as content. The subjects authors explore, their manners and patterns of thought, the metaphors and idioms they select, the grace with which they address the audience and carry it along—in sum, the personal qualities that emerge in the telling of the tale—are remembered long after the details of the argument have faded. Over the duration of a scholarly life, a writer constructs a personality. And as the relationship of author and reader matures across the years, the publication of a new piece is the occasion to look not so much for argumentative roundhouse punches that could have been thrown anywhere by anybody, as for an old friend.

This is the way I come to the work of Steven D. Smith, the most penetrating and thoughtful scholar of religious freedom of our generation, and that rare author in American legal academia whom it is a joy to read. His new book, The Rise and Decline of American Religious Freedom, represents a distinctively and recognizably Smith-esque contribution. His authorial method has always been primarily diagnostic: he describes the existing legal and historical landscape, and in so doing brings a particular critical perspective that generally runs more or less against the current. Toward the conclusion of his work, Smith often gestures toward several possible resolutions to the problems he has discussed, but they are rarely more than that: soft speculations, almost afterthoughts, about a few pathways out of the forest. But the heart of a Steve Smith book is in the careful exposition of a problem. He has cultivated this method over the years with consistent, wry panache to great effect—whether the subject is the healthful absence of a single theory of the religion clauses of the First Amendment, or the contemporary obsession with the value of equality, or the unsustainable claims about the “reason” that inheres in constitutional law and scholarship. Always, Smith offers an alternative historical and doctrinal description. Always, he hints suggestively at contrarian possibilities and ends. Always, the leitmotivs are skepticism and decline.

July 21, 2014 in DeGirolami, Marc | Permalink