Not to keep harping on Professor Bainbridge, but On Firm Ground points me to another interesting factoid about his little list: the only woman he thinks "definitely" deserves to be on it (assuming his "glaring omissions" are his "definites") is Julia Childs. Because what makes an American woman great? If she can cook, of course.
Reviewing the list again, I see that he has Rosa Parks as a "definitely not." Julia Childs yes, Rosa Parks no, Susan B. Anthony and Eleanor Roosevelt maybe?
Right.
UPDATE: Professor Bainbridge thinks my whole motivation for knocking Julia Childs is "political correctness." I'll admit that, being a college student, my knowledge of good food is limited to "it's not in the Dining Hall." And hey, maybe Childs should indeed be on the list. I'm just saying that it is pretty skewed priorities to place a woman's contributions to the culinary arts over those who were critical to racial equality, woman's suffrage, and woman's equality, respectively.
See my other update here.
Saturday, May 14, 2005
Friday, May 13, 2005
The Best of the Best
Professor Bainbridge tells of a forthcoming Discovery Channel show where people can vote on the 100 greatest Americans. He isn't pleased with it. Neither am I. I love Barack Obama, but he has done absolutely nothing to earn a place amongst the top 100 Americans ever (yet). Bainbridge also helpfully bolds those names he thinks definitely should be in the top 100 and italicizes those he thinks definitely shouldn't. Those who he thinks there's room for argument, he keeps in normal font.
I realize that it would be tremendous waste of time to go down the entire list and pick out my disagreements, point by point. But I want to mention two decisions that caught my eye.
The first is Jackie Robinson. He says definitely not. Breaking the color barrier in America's pastime, and definitely not? Incredible statistical achievements aside, Jackie Robinson was the most visible sign of racial integration prior to Brown v. Board. You could make the case that his classy and gutsy performance in his rookie season and thereafter was a critical turning point in the civil rights revolution, providing unassailable evidence of black equality in what previously had--literally--been an all-white endeavor. I'll grant that he is not a lock, but I don't think it is "definite," by any stretch, that he shouldn't be there.
The second problem is a comparative one. He lists Ronald Reagan as a lock, while having Dr. Martin Luther King down as just a "maybe." Excuse me? I will say this about President Reagan, he is the most recent president I'd even consider putting on the list (before that, I think JFK or maybe even Eisenhower are the most recent ones you could argue for). I'd even say I'd lean towards it. However, to say he was more important than Dr. King is a massive distortion of priorities. I would put King in my top 10, let alone top 100. He was instrumental in ending this country's shameful legacy of race discrimination and subordination, a powerful orator, and a role model for generations of activists tempted by the siren's call of violent confrontation. Reagan's contributions are great, to be sure, but they are also more controversial and the causation is speculative. Furthermore, even for the good things that unquestionably did happen in the Reagan administration, I don't think you can lay the credit entirely at his feet. And in evaluating Reagan, we do have to acknowledge the Iran-Contra affair and his tacit (and not-so-tacit) support for brutal right wing dictatorships as significant negative items on the ledger (speak of the devil, look at David Adnesik). Dr. King has no such liabilities. Put them both on the list, perhaps, but there is simply no way to justify having Reagan on there and King off.
UPDATE: Victory is ours! Professor Bainbridge just updated his post, agreeing on both Robinson and King. He does argue that Reagan definitely should be on it as well though. Recall though that I said I would lean toward putting Reagan on as well (though NOT, repeat NOT, because he made Republicans a permanent majority in America. Ugh.). I'm just saying that you cannot by any stretch put him on and leave King off. He also says that Thurgood Marshall was more important than Dr. King. Of all the people, I'm surprised to hear Professor Bainbridge say that. I would have thought that Justice Marshall would have earned the good Professor's ire as a "judicial activist" and an overall weak judge (charges that have been leveled at him before). Meanwhile, Dr. King's seamless connection of religious faith and moral activism would, I would have thought, struck a chord. Dr. King is perhaps the greatest reminder to the secular left that religion can be their champion too. As someone who feels faith should get a greater hearing in the public square, Dr. King could be your greatest ally, Professor.
One more thing, too. Bainbridge writes that "David Schraub takes me to task in a couple of posts, I guess mostly for not being politically correct enough." It is a sad day in America when racial equality (or the recognition of its importance) becomes something dismissed as "politically correct." Throw that label at Affirmative Action and Jesse Jackson if you'd like. But saying that the recognition of Dr. King's accomplishments is an example of "political correctness" is ridiculous bordering on offensive. The Civil Rights Act was not "politically correct." The Voting Rights Act was not "politically correct." Demanding to be served as equals in southern restraunts, bus stations, and department stores was not "politically correct." These were events that were absolutely vital to America's status as a just society. Ever wonder why Blacks still feel alienated in America? It's because a mere 40 years after the Civil Rights Act, we already are placing some of their greatest champions below our greatest chefs in terms of praise, and labeling any attempt to challenge it as just another example of PC run amok. Remembering these acts as turning points in American history is not "politically correct," it is just "correct." We dismiss them at our own peril.
See my other update here.
I realize that it would be tremendous waste of time to go down the entire list and pick out my disagreements, point by point. But I want to mention two decisions that caught my eye.
The first is Jackie Robinson. He says definitely not. Breaking the color barrier in America's pastime, and definitely not? Incredible statistical achievements aside, Jackie Robinson was the most visible sign of racial integration prior to Brown v. Board. You could make the case that his classy and gutsy performance in his rookie season and thereafter was a critical turning point in the civil rights revolution, providing unassailable evidence of black equality in what previously had--literally--been an all-white endeavor. I'll grant that he is not a lock, but I don't think it is "definite," by any stretch, that he shouldn't be there.
The second problem is a comparative one. He lists Ronald Reagan as a lock, while having Dr. Martin Luther King down as just a "maybe." Excuse me? I will say this about President Reagan, he is the most recent president I'd even consider putting on the list (before that, I think JFK or maybe even Eisenhower are the most recent ones you could argue for). I'd even say I'd lean towards it. However, to say he was more important than Dr. King is a massive distortion of priorities. I would put King in my top 10, let alone top 100. He was instrumental in ending this country's shameful legacy of race discrimination and subordination, a powerful orator, and a role model for generations of activists tempted by the siren's call of violent confrontation. Reagan's contributions are great, to be sure, but they are also more controversial and the causation is speculative. Furthermore, even for the good things that unquestionably did happen in the Reagan administration, I don't think you can lay the credit entirely at his feet. And in evaluating Reagan, we do have to acknowledge the Iran-Contra affair and his tacit (and not-so-tacit) support for brutal right wing dictatorships as significant negative items on the ledger (speak of the devil, look at David Adnesik). Dr. King has no such liabilities. Put them both on the list, perhaps, but there is simply no way to justify having Reagan on there and King off.
UPDATE: Victory is ours! Professor Bainbridge just updated his post, agreeing on both Robinson and King. He does argue that Reagan definitely should be on it as well though. Recall though that I said I would lean toward putting Reagan on as well (though NOT, repeat NOT, because he made Republicans a permanent majority in America. Ugh.). I'm just saying that you cannot by any stretch put him on and leave King off. He also says that Thurgood Marshall was more important than Dr. King. Of all the people, I'm surprised to hear Professor Bainbridge say that. I would have thought that Justice Marshall would have earned the good Professor's ire as a "judicial activist" and an overall weak judge (charges that have been leveled at him before). Meanwhile, Dr. King's seamless connection of religious faith and moral activism would, I would have thought, struck a chord. Dr. King is perhaps the greatest reminder to the secular left that religion can be their champion too. As someone who feels faith should get a greater hearing in the public square, Dr. King could be your greatest ally, Professor.
One more thing, too. Bainbridge writes that "David Schraub takes me to task in a couple of posts, I guess mostly for not being politically correct enough." It is a sad day in America when racial equality (or the recognition of its importance) becomes something dismissed as "politically correct." Throw that label at Affirmative Action and Jesse Jackson if you'd like. But saying that the recognition of Dr. King's accomplishments is an example of "political correctness" is ridiculous bordering on offensive. The Civil Rights Act was not "politically correct." The Voting Rights Act was not "politically correct." Demanding to be served as equals in southern restraunts, bus stations, and department stores was not "politically correct." These were events that were absolutely vital to America's status as a just society. Ever wonder why Blacks still feel alienated in America? It's because a mere 40 years after the Civil Rights Act, we already are placing some of their greatest champions below our greatest chefs in terms of praise, and labeling any attempt to challenge it as just another example of PC run amok. Remembering these acts as turning points in American history is not "politically correct," it is just "correct." We dismiss them at our own peril.
See my other update here.
Good Faith Compromise
Kevin Drum links not once, but twice, to posts dealing with religion in the public square.
The latest is a Los Angeles Times editorial by Amy Sullivan criticizing the Republican party for trying to monopolize faith. Sullivan, a Baptist herself, has very strong grounds to make the claim:
The other one was a post (and now a follow-up too) by Matthew Yglesias, wondering if Democrats can't cede a few inches on church/state issues in order to gain a few miles of credibility in the culture war deal. The biggest problem, as Ezra Klein notes, is that it is not institutional liberalism that is protesting the "minor" church/state infractions, but rather organizations associated with liberals like the ACLU. It's not really possible for the Democratic Party to reign those groups in, so we really can't stop it.
But technical objections aside, my support (and I speak on this as a virulent church/state separation zealot) for such a plan really hinges on what particular things we are talking about. Creationism in public schools? Forget about it? Prayer in the classroom? Yglesias says he had to do it and was fine, but for every story like that there is another one of Jewish (or even dissident Christian) students being harassed, beaten, insulted, and threatened for opting out. Kevin Drum says that we've won 98% of this battle and we should let the last 2% slide, but I'd suspect that the 2% is in places where minority religions are most cowed and have most reason to fear school prayer. The practice is inherently exclusionary, and I draw a redline on it. 10 Commandments? Perhaps the toughest question of all (except in public schools, where I again say absolutely no-go). On the one hand, the commandments, as part of broader historical referencing, don't seem too inflammatory. There is a difference between Roy Moore's "submit to God, bitches!" granite slab and a more low-key, contextual representation. So long as the religious message is not central and the presentation is not too "in-your-face," so to speak, I don't think the latter has too much potential for harm.
On the other hand, the 10 commandments are not even close to being religiously neutral. The amicus brief filed by an alliance of non-Judeo-Christian religions makes that abundantly clear. Furthermore, there are different versions of the 10 commandments depending on whether you are Catholic, Protestant, or Jewish--so there is an internal denominational bias as well. Nor is there, in reality, a historical defense for their presence. And finally, it ratifies a disturbing tendency in American law to regard "religion" as only "Judeo-Christian religions." Those faiths which do not believe in principles that can easily be subsumed by the Christian paradigm (Hinduism or Buddhism, for example) are intrinsically seen as subordinate and lesser, faiths to be "tolerated" (at best) but certainly not seen as equal. Worse yet, the rhetoric of the commandments itself justifies this. "I am the Lord thy God, you shall have no other Gods before me." What message does that send? The school (state) is proffering a religious COMMANDMENT (because remember, these are, after all, commandments) to not have other God's beyond the (Christian or maybe Jewish) God. Would anybody be all that surprised if this spawned sectarian violence? As Rita Steinhardt Botwinick wrote, "Ethnic minorities have always served as a convenient target for concealed antagonism," but "[w]hen prejudice is elevated to patriotism, to doing one's duty for the Fatherland, then excesses of behavior are possible, even probable." [A History of the Holocaust: From Ideology to Annihilation. Third Edition, (Upper Saddle River: Pearson Prentice Hall, 2004), pgs. 2-3]. I'm willing to make compromises here and there, but this is a path we must tread on very, very lightly.
The latest is a Los Angeles Times editorial by Amy Sullivan criticizing the Republican party for trying to monopolize faith. Sullivan, a Baptist herself, has very strong grounds to make the claim:
The charge used to be that Democrats were godless, a party of secularists run amok. That changed somewhere around the time when Barack Obama boomed, "We worship an awesome God in the blue states!"; progressive minister Jim Wallis became one of the best-selling authors in the country; and Americans began to reconnect with their history, including centuries of religiously motivated political causes such as abolition, women's suffrage and the civil rights movement.Faced with real, believing Democrats, Republicans have shifted their rhetoric and now claim that Democrats aren't "real" "people of faith." I find that to be a personal assault on my dignity as a Jew who very much has "faith," and whose faith is what guides him toward a polity of liberalism, equal rights, and human dignity for all citizens. What it comes down to is that my faith isn't true because it isn't Christian (and more specifically, a particular brand of Christianity), and thus is just grandstanding. Why not call me a Christ-killer too while you're at it? Such a viewpoint is wholly incompatible with American principles of democracy.
So having failed to prove that Democrats are all secularists, conservatives now assert that liberals are not religious enough. U.S. senator and former Sunday school teacher Hillary Clinton is accused of faking religion when she talks about faith. Pope Benedict XVI talks about a smaller, purer Catholic Church and the first to be counted out is Father Thomas Reese, a liberal Jesuit who was the editor of America magazine until he was forced to resign last week.
Conservative leaders use the phrase "practical secularists" to describe believers who they feel are inadequately observant. CNN host Wolf Blitzer buys into the spin and suggests on-air that conservative columnist Robert Novak is a better Catholic than the devout Paul Begala, presumably because Begala is a Democrat.
This is a debate that conservatives are going to lose. Because you don't have to be liberal or conservative to be offended by the idea that a political or religious leader can decide whether your faith is good enough.
The other one was a post (and now a follow-up too) by Matthew Yglesias, wondering if Democrats can't cede a few inches on church/state issues in order to gain a few miles of credibility in the culture war deal. The biggest problem, as Ezra Klein notes, is that it is not institutional liberalism that is protesting the "minor" church/state infractions, but rather organizations associated with liberals like the ACLU. It's not really possible for the Democratic Party to reign those groups in, so we really can't stop it.
But technical objections aside, my support (and I speak on this as a virulent church/state separation zealot) for such a plan really hinges on what particular things we are talking about. Creationism in public schools? Forget about it? Prayer in the classroom? Yglesias says he had to do it and was fine, but for every story like that there is another one of Jewish (or even dissident Christian) students being harassed, beaten, insulted, and threatened for opting out. Kevin Drum says that we've won 98% of this battle and we should let the last 2% slide, but I'd suspect that the 2% is in places where minority religions are most cowed and have most reason to fear school prayer. The practice is inherently exclusionary, and I draw a redline on it. 10 Commandments? Perhaps the toughest question of all (except in public schools, where I again say absolutely no-go). On the one hand, the commandments, as part of broader historical referencing, don't seem too inflammatory. There is a difference between Roy Moore's "submit to God, bitches!" granite slab and a more low-key, contextual representation. So long as the religious message is not central and the presentation is not too "in-your-face," so to speak, I don't think the latter has too much potential for harm.
On the other hand, the 10 commandments are not even close to being religiously neutral. The amicus brief filed by an alliance of non-Judeo-Christian religions makes that abundantly clear. Furthermore, there are different versions of the 10 commandments depending on whether you are Catholic, Protestant, or Jewish--so there is an internal denominational bias as well. Nor is there, in reality, a historical defense for their presence. And finally, it ratifies a disturbing tendency in American law to regard "religion" as only "Judeo-Christian religions." Those faiths which do not believe in principles that can easily be subsumed by the Christian paradigm (Hinduism or Buddhism, for example) are intrinsically seen as subordinate and lesser, faiths to be "tolerated" (at best) but certainly not seen as equal. Worse yet, the rhetoric of the commandments itself justifies this. "I am the Lord thy God, you shall have no other Gods before me." What message does that send? The school (state) is proffering a religious COMMANDMENT (because remember, these are, after all, commandments) to not have other God's beyond the (Christian or maybe Jewish) God. Would anybody be all that surprised if this spawned sectarian violence? As Rita Steinhardt Botwinick wrote, "Ethnic minorities have always served as a convenient target for concealed antagonism," but "[w]hen prejudice is elevated to patriotism, to doing one's duty for the Fatherland, then excesses of behavior are possible, even probable." [A History of the Holocaust: From Ideology to Annihilation. Third Edition, (Upper Saddle River: Pearson Prentice Hall, 2004), pgs. 2-3]. I'm willing to make compromises here and there, but this is a path we must tread on very, very lightly.
Minister of God
Via Don Herzog over at Left2Right, I find this incredible article by Justice Scalia on the Death Penalty. It is, in many ways, typical Scalia: eloquent, well-argued, tightly reasoned, principled. And at times, very, very scary.
What sets off my alarm bells is not Scalia's well-known defense of the "dead" (or "enduring") constitution. Nor am I surprised that he concludes (as a matter of theology) that the Death Penalty is morally tolerable. It isn't even his false binary between Christian belief and secular non-belief (Jews, for example, hold different views about life and death matters than Christians). Rather, in this piece, Scalia explicitly affirms the state as an instrument of (the Christian) God.
I've said it before, and I will say it again: the view of America (or any nation) as a "Christian nation" is fundamentally undemocratic and is impossible to reconcile with the pluralist principles fundamental to our state. Scalia is an eloquent champion for his side, but he misses that simple point. Where religion is dogmatic, democracy is indeterminate. It is impossible to combine complete, faith-based assurance and prudent, democratic pluralism. And once the state becomes "the minister of God," it is impossible for the non-believer to truly be part of the political community anymore.
What sets off my alarm bells is not Scalia's well-known defense of the "dead" (or "enduring") constitution. Nor am I surprised that he concludes (as a matter of theology) that the Death Penalty is morally tolerable. It isn't even his false binary between Christian belief and secular non-belief (Jews, for example, hold different views about life and death matters than Christians). Rather, in this piece, Scalia explicitly affirms the state as an instrument of (the Christian) God.
The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law-even if it does not compel him to act unjustly-need not be obeyed. St. Paul would not agree. "Ye must needs be subject," he said, "not only for wrath, but also for conscience sake." For conscience sake. The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible. We have done that in this country (and continental Europe has not) by preserving in our public life many visible reminders that—in the words of a Supreme Court opinion from the 1940s-"we are a religious people, whose institutions presuppose a Supreme Being." These reminders include: "In God we trust" on our coins, "one nation, under God" in our Pledge of Allegiance, the opening of sessions of our legislatures with a prayer, the opening of sessions of my Court with "God save the United States and this Honorable Court," annual Thanksgiving proclamations issued by our President at the direction of Congress, and constant invocations of divine support in the speeches of our political leaders, which often conclude, "God bless America." All this, as I say, is most un–European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as "the minister of God," to "execute wrath" upon the evildoer. [emphasis added]
I've said it before, and I will say it again: the view of America (or any nation) as a "Christian nation" is fundamentally undemocratic and is impossible to reconcile with the pluralist principles fundamental to our state. Scalia is an eloquent champion for his side, but he misses that simple point. Where religion is dogmatic, democracy is indeterminate. It is impossible to combine complete, faith-based assurance and prudent, democratic pluralism. And once the state becomes "the minister of God," it is impossible for the non-believer to truly be part of the political community anymore.
Thursday, May 12, 2005
Can They Do That?
A Federal District Court in Nebraska (of all places) has just struck down the state's constitutional amendment defining marriage as between a man and a women. The amendment reads as follows: "Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska." The justification in the 43 page opinion was a hodge-podge of constitutional clauses, including the 1st amendment, the 14th amendment, and the anti-bill of attainder clause.
Eugene Volokh delivers a fairly comprehensive dismantling of the court's reasoning. I think he makes a compelling argument. The only possible flaw is how we interpret Romer v. Evans (and Volokh himself admits that he's not quite sure how to do it). Basically, what I think this whole deal comes down to is whether or not a state is allowed enact statutory language that it cannot place in its constitution (this puts aside, for the moment, whether or not gay marriage is constitutionally mandated--I think you can make a compelling case that it is, but that's another issue and not what the court ruled on).
For those of you who don't know, Romer stuck down a Colorado Constitutional amendment which prohibited any governmental agency in the whole state from passing or enforcing laws which gave homosexuals specific protections (for example, anti-discrimination laws). Presumably, it would have perfectly acceptable (from a constitutional perspective, anyway) for the state to have written statutory language that removed homosexuality from being a protected class in any pertinent Colorado laws. What seemed to offend the Supreme Court in that case was that the language was placed in the constitution, as a blanket bar against any law that might otherwise be passed to the benefit of homosexuals. The implication seems to be that state constitutions are held to tighter scrutiny than state laws--presumably because constitutions are far less amenable to the democratic process and effectively choke off continued political debate on the issues they address. Given that, state constitutional clauses which specifically target certain classes of citizens for legal disabilities are highly suspect, if not completely forbidden.
It is no accident that our constitution (with the not-so-minor exception of slavery) contains no language restricting the rights of specific groups of citizens, only defenses of them. Furthermore, the constitutional tradition has been virtually without pause one of rights expansion, moving from the bill of rights to the civil rights amendments. This is what Justice Harlan meant when he said "The constitution neither knows nor tolerates classes amongst citizens" (Plessy v. Ferguson (dissenting)). To be sure, the legislature makes classes amongst citizens all the time, and the court's have standards by which to evaluate them (rational basis, heightened review, strict scrutiny). But somehow placing those same differentiations into the constitution seems to be an abrogation of our democratic spirit, not its affirmation. The heart of a democratic system, above all else, is that it insures a political marketplace where all can plead their case. For the most part, the constitution should not be a trump card between competing value system but rather provide the baselines from which political debate can proceed. These principles include free speech, freedom of the press, and some measure of equality under the law. Of course, we can amend the federal constitution to say whatever we want--from excluding gays to mandating a free pie to every citizen to an immediate genocide. However, state constitutions are subordinate to the federal, and I think the very least the Guarantee Clause requires of the states is that their political processes remain open and recognizably democratic.
There are other problems with the amendment. The most glaring is that it is fatally vague. The second clause reads as follows: "The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska." "Similar"? What the hell does that mean? The phrase could justify anything. From my perspective, the only way same-sex marriage restrictions might possibly be valid is if you can contract around them, that is, if all the relational rights (IE, visitation, second-parent adoption, inheritance, etc) can be granted by one gay partner to another by way of contract. However, to my eye that sort of contractual relationship is quite "similar" to a marriage (indeed, that is what it is blatantly trying to imitate). And the language of the amendment would seem to prohibit the state court's from enforcing those contracts (see Shelley v. Kraemer). At that point, the amendment seems almost perfectly analogous to the one in Romer; it utterly closes off any possibility for any legal protection for gays and gays alone--even via contract.
Other folks, such as Nixguy, are talking about the political implications of the ruling. He's probably right when he says that
Just as some Democrats unethically tried to exploit anti-war sentiment to gain cheap electoral victories (at the expense of our national security), some (many) Republicans succeeded in exploiting America's rampant homophobia to push themselves into office (at the expense of the dignity and humanity of our fellow citizens). Politically, it was quite shrewd. However, part of being a responsible political party means not seizing every opportunity to demonize society's outcast for quick political gain. In doing so, the GOP forfeited any claim to moral legitimacy that it might have earned by its supposed "leadership" in the war on terror.
But I digress. The real problem with this whole debate is that the GOP decided it wants to substitute mob rule for constitutional rule. As Nixguy so helpfully demonstrates:
Perhaps Nixguy might want to check again. I can get 51, 60, or 90% of the people to tell Nixguy he can't speak anymore, but in America, he can quite legitimately tell me to go to hell. Why? Because Nixguy has certain rights, guaranteed by the constitution, and they are not subjected to a vote and depend on the outcome of no election (to paraphrase Justice Jackson). More pertinently, from our standpoint, 51% of the people cannot vote to deprive the vote of the other 49%. Such an action would not be "democratic" in any sense of the term, even though it garnered a majority. Put another way, the norms that enable democracy to function cannot themselves be subject to democratic elections. One can dispute whether or not the right to marry (or more broadly, intimate association, equality under the law, and/or privacy) is one of those (though the legal matter seems well-settled, see Loving v. Virginia). But when the judiciary interprets our constitution as mandating an equal dignity and protection for gay citizens as an essential part of a democratic system, I hardly think they are abdicating their legal responsibilities.
UPDATE: Amos Anon jumps into the fray, and then he does it again! The second post, moreover, seems to echo my belief that the constitution should consist of mostly procedural safeguards.
Eugene Volokh delivers a fairly comprehensive dismantling of the court's reasoning. I think he makes a compelling argument. The only possible flaw is how we interpret Romer v. Evans (and Volokh himself admits that he's not quite sure how to do it). Basically, what I think this whole deal comes down to is whether or not a state is allowed enact statutory language that it cannot place in its constitution (this puts aside, for the moment, whether or not gay marriage is constitutionally mandated--I think you can make a compelling case that it is, but that's another issue and not what the court ruled on).
For those of you who don't know, Romer stuck down a Colorado Constitutional amendment which prohibited any governmental agency in the whole state from passing or enforcing laws which gave homosexuals specific protections (for example, anti-discrimination laws). Presumably, it would have perfectly acceptable (from a constitutional perspective, anyway) for the state to have written statutory language that removed homosexuality from being a protected class in any pertinent Colorado laws. What seemed to offend the Supreme Court in that case was that the language was placed in the constitution, as a blanket bar against any law that might otherwise be passed to the benefit of homosexuals. The implication seems to be that state constitutions are held to tighter scrutiny than state laws--presumably because constitutions are far less amenable to the democratic process and effectively choke off continued political debate on the issues they address. Given that, state constitutional clauses which specifically target certain classes of citizens for legal disabilities are highly suspect, if not completely forbidden.
It is no accident that our constitution (with the not-so-minor exception of slavery) contains no language restricting the rights of specific groups of citizens, only defenses of them. Furthermore, the constitutional tradition has been virtually without pause one of rights expansion, moving from the bill of rights to the civil rights amendments. This is what Justice Harlan meant when he said "The constitution neither knows nor tolerates classes amongst citizens" (Plessy v. Ferguson (dissenting)). To be sure, the legislature makes classes amongst citizens all the time, and the court's have standards by which to evaluate them (rational basis, heightened review, strict scrutiny). But somehow placing those same differentiations into the constitution seems to be an abrogation of our democratic spirit, not its affirmation. The heart of a democratic system, above all else, is that it insures a political marketplace where all can plead their case. For the most part, the constitution should not be a trump card between competing value system but rather provide the baselines from which political debate can proceed. These principles include free speech, freedom of the press, and some measure of equality under the law. Of course, we can amend the federal constitution to say whatever we want--from excluding gays to mandating a free pie to every citizen to an immediate genocide. However, state constitutions are subordinate to the federal, and I think the very least the Guarantee Clause requires of the states is that their political processes remain open and recognizably democratic.
There are other problems with the amendment. The most glaring is that it is fatally vague. The second clause reads as follows: "The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska." "Similar"? What the hell does that mean? The phrase could justify anything. From my perspective, the only way same-sex marriage restrictions might possibly be valid is if you can contract around them, that is, if all the relational rights (IE, visitation, second-parent adoption, inheritance, etc) can be granted by one gay partner to another by way of contract. However, to my eye that sort of contractual relationship is quite "similar" to a marriage (indeed, that is what it is blatantly trying to imitate). And the language of the amendment would seem to prohibit the state court's from enforcing those contracts (see Shelley v. Kraemer). At that point, the amendment seems almost perfectly analogous to the one in Romer; it utterly closes off any possibility for any legal protection for gays and gays alone--even via contract.
Other folks, such as Nixguy, are talking about the political implications of the ruling. He's probably right when he says that
"Leaving aside the rightness or wrongness, it can only be said that this issue is a godsend to the Republican Party and is killing the Democrats. One cannot consider that the Democrats are in full retreat across all aspects of American Democracy without considering that the issue of judges legislating from the bench has something to do with it."Indeed, the GOP has done a brilliant job in exploiting voters' fears and prejudices against particular court cases affirming the rights of unpopular minorities (and given that many of the judges ruling in these cases are Republicans, the way they've managed to make it into a right/left issue is nothing short of remarkable). Personally, I find this to be morally appalling:
[A]fter the election, undoubtedly aided by the 11 states passing anti-gay marriage referendums, I found that the issue that most arose my ire was gay rights. Part of it was due to Andrew Sullivan's coverage of the reaction in the gay community. It wasn't resignation, or disappointment, or even anger. It was fear. They were genuinely afraid of the message being sent by the rest of the country. It was loud, resounding, and universal: We don't want you. You're not welcome here. You aren't part of the American community. That message seriously disturbs me. When America starts telling its vulnerable minorities that they aren't welcome, starts passing laws that seek to relegate disliked groups to legal, moral, and political inferiority, we have a problem. And I do believe that this problem ranks right with the war on terror as one of the great moral challenges of our times.
If the baseline for continued Democratic legitimacy in the 21st century is support for the war on terror, then the baseline for Republican moral legitimacy is support for gay rights. Unfortunately, I see far fewer Republicans rising to this challenge than Democrat's rising to theirs.
Just as some Democrats unethically tried to exploit anti-war sentiment to gain cheap electoral victories (at the expense of our national security), some (many) Republicans succeeded in exploiting America's rampant homophobia to push themselves into office (at the expense of the dignity and humanity of our fellow citizens). Politically, it was quite shrewd. However, part of being a responsible political party means not seizing every opportunity to demonize society's outcast for quick political gain. In doing so, the GOP forfeited any claim to moral legitimacy that it might have earned by its supposed "leadership" in the war on terror.
But I digress. The real problem with this whole debate is that the GOP decided it wants to substitute mob rule for constitutional rule. As Nixguy so helpfully demonstrates:
Last time I checked we lived in a Democracy and the way you win is by convincing 51% of the people that your view is the correct one. That is not how these people operate though. Their strategy is to get people sympathetic to their views in positions of power and then pass the laws they want as kings.
Perhaps Nixguy might want to check again. I can get 51, 60, or 90% of the people to tell Nixguy he can't speak anymore, but in America, he can quite legitimately tell me to go to hell. Why? Because Nixguy has certain rights, guaranteed by the constitution, and they are not subjected to a vote and depend on the outcome of no election (to paraphrase Justice Jackson). More pertinently, from our standpoint, 51% of the people cannot vote to deprive the vote of the other 49%. Such an action would not be "democratic" in any sense of the term, even though it garnered a majority. Put another way, the norms that enable democracy to function cannot themselves be subject to democratic elections. One can dispute whether or not the right to marry (or more broadly, intimate association, equality under the law, and/or privacy) is one of those (though the legal matter seems well-settled, see Loving v. Virginia). But when the judiciary interprets our constitution as mandating an equal dignity and protection for gay citizens as an essential part of a democratic system, I hardly think they are abdicating their legal responsibilities.
UPDATE: Amos Anon jumps into the fray, and then he does it again! The second post, moreover, seems to echo my belief that the constitution should consist of mostly procedural safeguards.
Holy Warriors
Two British Mediterranean Studies Professors have penned an article explaining why Hamas' "incorporation" into Palestine's political process does not mean they will abandon their extremist and genocidal ends.
They should be careful: Speaking out in favor of Israel's human dignity and daring to question the Intifada might result in a boycott.
They should be careful: Speaking out in favor of Israel's human dignity and daring to question the Intifada might result in a boycott.
Something Has Gone Very Wrong: A Narrative on the Emergence of Race Consciousness
[This post has been deleted]
Guess Who Loves You?
There's a girl on my floor here at Carleton College. A freshman from South Dakota, very religious and hyper-conservative (she was practically cackling when Tom Daschle went down in flames). Surprisingly enough, we're pretty good friends, though we occasionally clash over religion and politics and the like.
Anyway, I wonder what she thinks about this new ad campaign Democrats are debuting in her home state?
Anyway, I wonder what she thinks about this new ad campaign Democrats are debuting in her home state?
Wednesday, May 11, 2005
Christian Supremacy and Democratic Pluralism
Legal Fiction makes an interesting observation about the latter-day Scopes Trial going on in Kansas, specifically a Board Members claim that "our nation is based on Christianity--not science":
I think that Federalist #10 is a pretty powerful indictment against America as a "Christian" nation, but not in the way Publius is saying. Rather, the underlying premise of Federalist #10 is a fear of power. This fear is generic, it isn't framed in a "but what if the Jews/Blacks/Blondes win elections" manner. That framework makes no sense if one believes in an absolute truth, like, say, Christianity. If one believes Christianity is "the way," then the objective of Federalist #10 would have been to demonstrate why the wrong people (Jews, Muslims, etc) won't gain power, not why nobody (Christian fundamentalists included) will gain too much of it. After all, if America was designed to be a "Christian nation" founded on Christian principles, then the structures of our government would rationally have been concerned with elevating their exclusive power and subordinating other potential threats. One impact of this is the suppression of democracy. I referenced this quote in a previous post, but I think it is very pertinent here as well:
On a structural level, pluralism cannot coincide with the belief in one ultimate end result. Individuals can, of course, believe passionately that one way is the "right way" while still recognizing that the state should remain neutral. However, states cannot simultaneously affirm one path as totally true and beyond debate and yet still allow for democratic deliberation. If America was a "Christian nation," it would have to recognize the universality of Christ's salvific event and thus view its unsaved citizens as "impure" or "deviations." It would also have to support missionizing activities against them, if not more hostile actions designed to get them to convert. Furthermore, if the crucifixion and resurrection were seen as the penultimate events in human history (which is the essence of the Christian narrative), then any political or social theory working outside that tradition (or that couldn't be incorporated in it) would have to be rejected on face. In such a world, it is simply impossible to argue that religious minorities could be equal members of the political community--the red line of what represents a legitimate democracy. Democracy is more than just having a vote--it presumes some manner of equality under law in which all members of the community have a voice in the system. Furthermore, as Mouffe points out, democracy is fundamentally indeterminate, it cannot affirm any particular end-values beyond what is necessary to keep the system itself running. These values are, for better or for worse, secular (free speech and press, equality under the law, right to vote, respect for the Other, etc).
Ian Reifowitz wrote a spectacular article in The New Republic outlining the way Christian universalism, when transplanted from the religious sphere and morphed into a political ideology, is effectively oppressive and anti-pluralist:
This is not to single Christianity out, loads of faiths and practices would, in effect, represent the same sort of anti-pluralist ideology. The reason we have to focus our attention on Christianity in particular, however, is because in America and in much of the world Christianity has a hegemonic dominance over other religion that makes it far more powerful--and more dangerous--than other like-minded groups. Put another way, we don't have to worry about any anti-pluralist stirrings in an obscure Nevada cult--but when that anti-pluralism is coming from the largest religion in the world, history reminds us of the need to take notice.
Christian theologians, especially those who have written in the post-Holocaust field, have begun to come to terms with this fact. Gregory Baum notes:
At root, a Christianity which cannot accept the validity of other ways of seeing the world (IE, those who do not accept Christ as savior and/or do not consider themselves to be irredeemably "fallen" without him) is a Christianity that will never be able to break out of a belligerent stance. It will never be able to completely shed its anti-Semitic past, and it will never be able to reverse the disturbing trend of imperialism and colonial domination which has followed Christian missionization for centuries.
Members of the Christian Right need to come to terms with a simple fact: America cannot be both a Christian nation and a democratic nation at the same time. This is not to say one cannot be a good Christian and a good American at the same time--we are talking solely about making America, as a state, into a Christian nation, not about the legitimacy of the views of private actors. Christian viewpoints are perfectly legitimate to hold, and nobody has any business saying that Christian values should be excluded from the citizenry (as some leftist commentators regrettably have advocated). The question is whether these values can be transported from the private sphere into the public, IE, whether Christian values should supplant the democratic values of, among other things, equality under the law. I'd entirely understand if they chose Christianity over democracy--after all, religion has been known to demand that sort of loyalty. But they have to recognize such a statement is an act of war against every value America stands for.
Just to be devil's advocate (yuk yuk), you can make a strong argument that our nation was based on science. First, Enlightenment thought and philosophy had a deep effect upon the Framers and the rationalist Constitution they produced. But more specifically, a lot of Madison's famous Federalist #10 bears a striking resemblance to Newtonian physics and its idea of vectors canceling each other out.
Remember that the revolutionary idea of Federalist #10 was that "factions" were less likely to abuse power in a large republic because there would be too many of them competing. According to Madision, they would essentially cancel each other out - just like Newtonian vectors.
I think that Federalist #10 is a pretty powerful indictment against America as a "Christian" nation, but not in the way Publius is saying. Rather, the underlying premise of Federalist #10 is a fear of power. This fear is generic, it isn't framed in a "but what if the Jews/Blacks/Blondes win elections" manner. That framework makes no sense if one believes in an absolute truth, like, say, Christianity. If one believes Christianity is "the way," then the objective of Federalist #10 would have been to demonstrate why the wrong people (Jews, Muslims, etc) won't gain power, not why nobody (Christian fundamentalists included) will gain too much of it. After all, if America was designed to be a "Christian nation" founded on Christian principles, then the structures of our government would rationally have been concerned with elevating their exclusive power and subordinating other potential threats. One impact of this is the suppression of democracy. I referenced this quote in a previous post, but I think it is very pertinent here as well:
To believe that a final resolution of conflicts is eventually possible...far from providing the necessary horizon of the democratic project, is something that puts it at risk. Indeed, such an illusion implicitly carries the desire for a reconciled society where pluralism would be superseded. When pluralist democracy is conceived in such a way, it becomes a self-refuting ideal because the very moment of its realization coincides with its disintegration.[Chantal Mouffe, "Democracy and Pluralism: A Critique of the Rationalist Approach," 16 Cardozo L. Rev. 1533, 1544 (1995)]
On a structural level, pluralism cannot coincide with the belief in one ultimate end result. Individuals can, of course, believe passionately that one way is the "right way" while still recognizing that the state should remain neutral. However, states cannot simultaneously affirm one path as totally true and beyond debate and yet still allow for democratic deliberation. If America was a "Christian nation," it would have to recognize the universality of Christ's salvific event and thus view its unsaved citizens as "impure" or "deviations." It would also have to support missionizing activities against them, if not more hostile actions designed to get them to convert. Furthermore, if the crucifixion and resurrection were seen as the penultimate events in human history (which is the essence of the Christian narrative), then any political or social theory working outside that tradition (or that couldn't be incorporated in it) would have to be rejected on face. In such a world, it is simply impossible to argue that religious minorities could be equal members of the political community--the red line of what represents a legitimate democracy. Democracy is more than just having a vote--it presumes some manner of equality under law in which all members of the community have a voice in the system. Furthermore, as Mouffe points out, democracy is fundamentally indeterminate, it cannot affirm any particular end-values beyond what is necessary to keep the system itself running. These values are, for better or for worse, secular (free speech and press, equality under the law, right to vote, respect for the Other, etc).
Ian Reifowitz wrote a spectacular article in The New Republic outlining the way Christian universalism, when transplanted from the religious sphere and morphed into a political ideology, is effectively oppressive and anti-pluralist:
Christian conservatives...are not separatists: They sincerely care about the souls of all people, and their theology, going back to St. Paul, calls for them to seek new members across lines of race, ethnicity, culture, and religion.
But when this universalism enters the political arena, it has the same effect as radical multiculturalism. Anyone is welcome to join adherents of the theocratic right and adopt their beliefs, but anyone who does not--gays, feminists, proponents of abortion rights, non-Christians--ultimately faces second-class status in the America they plan to build. This is a rejection of pluralism that is every bit as fundamental as the rejection of pluralism preached by the radical multiculturalists: Both would end in large swathes of the American population severed from our national identity.
This is not to single Christianity out, loads of faiths and practices would, in effect, represent the same sort of anti-pluralist ideology. The reason we have to focus our attention on Christianity in particular, however, is because in America and in much of the world Christianity has a hegemonic dominance over other religion that makes it far more powerful--and more dangerous--than other like-minded groups. Put another way, we don't have to worry about any anti-pluralist stirrings in an obscure Nevada cult--but when that anti-pluralism is coming from the largest religion in the world, history reminds us of the need to take notice.
Christian theologians, especially those who have written in the post-Holocaust field, have begun to come to terms with this fact. Gregory Baum notes:
[P]olitical events of world history have made the churches reconsider the meaning of their missionary activity or evangelization. They have been made to see how closely their missions have been associated with the extension of Western power and Western culture. The protesting voices from the Third World and the social critics in the West have convinced many churchmen that the doctrine of the church's mission has legitimated the invasion of the continents by the Christian nations. For many centuries, the church regarded the expansion of the white man as part of God's providential design. The missionary followed the soldier and merchant. The confidence with which whites gained power over the continents, drew the peoples of the world into institutional structures the centers of which were in the West, and organized the resources of the earth so as to make by far the greater share available to Christian nations, cannot be separated from the Christian claim that the church is the unique instrument of salvation and that it is destined to embrace all the peoples of the world. We do not suggest, of course, that the Christian church was the acting cause behind the expansion o the Western nationals. What we do claim is that the imperialistic invasion and appropriation of the continents, caused by a variety of economic, political, and cultural factors, was sanctioned by the church's understanding of world history, with the Christian commonwealth at the center and the non-Christian peoples on the periphery, destined to become Christian in due time.
Thanks to a keener social conscience, the churches have become sensitive to the political meaning implicit in their missionary action. The hidden implication of their claim to unlimited universality is the spiritual suppression of all other religions and of the various cultures that have been nourished by these religions. ["Rethinking the Church's Mission after Auschwitz," in Auschwitz: Beginning of a New Era, Eva Fleischner, ed., (NY: Cathedral of St. John the Divine, 1977), pp. 113-28, 114]
At root, a Christianity which cannot accept the validity of other ways of seeing the world (IE, those who do not accept Christ as savior and/or do not consider themselves to be irredeemably "fallen" without him) is a Christianity that will never be able to break out of a belligerent stance. It will never be able to completely shed its anti-Semitic past, and it will never be able to reverse the disturbing trend of imperialism and colonial domination which has followed Christian missionization for centuries.
Members of the Christian Right need to come to terms with a simple fact: America cannot be both a Christian nation and a democratic nation at the same time. This is not to say one cannot be a good Christian and a good American at the same time--we are talking solely about making America, as a state, into a Christian nation, not about the legitimacy of the views of private actors. Christian viewpoints are perfectly legitimate to hold, and nobody has any business saying that Christian values should be excluded from the citizenry (as some leftist commentators regrettably have advocated). The question is whether these values can be transported from the private sphere into the public, IE, whether Christian values should supplant the democratic values of, among other things, equality under the law. I'd entirely understand if they chose Christianity over democracy--after all, religion has been known to demand that sort of loyalty. But they have to recognize such a statement is an act of war against every value America stands for.
60 Votes or Bust
Orin Kerr wonders whether or not it would be better to have a de facto 60 vote threshold for appellate court nominees. Count me down as a sympathizer. Ideologues do not belong on our judiciary. The surest way to insure that there are fewer fanatics on the court is to work for a consensus amongst liberals and conservatives on nominees.
Tuesday, May 10, 2005
Cheeseburgers and Church/State Jurisprudence
Prawfs Blawg was kind enough to link to my non-thoughts on so-called "practicing non-believers," so I'll actually give him some real thoughts this time around.
The question, for those of you with short attention span, is how the free exercise clause treats/ought to treat persons who engage in religious practices without holding corresponding religious beliefs. PB did some research and concludes the following:
Obviously, Courts have, in the past, inquired into the "sincerity" of religious belief (see United States v. Ballard, 322 U.S. 78 (1944)). In my last post, a commenter told me that Courts can't act as mind-readers and can only go off the basis of actions. This strikes me as a wholly unworkable standard. Taking a day off on Saturday or Sunday is often a religiously motivated action. It also is often entirely secular. In that case, the motivation seems absolutely critical in determining whether or not one is deserving of free exercise protection (surely not everyone who wants a break on Sunday is entitled to a First Amendment claim!). There are many actions that might be mundane or even commonplace for most people, but have deep religious significance for particular practictioners. Beyond taking a day of rest on the Sabbath, consider drinking wine--an action that is quite normal and secular for most people but critical, at times, to the religious practices of, among others, Catholics and Jews. If Congress was going to reinstate the ban on drinking alcohol, it seems it could make an exception for religious purposes, even if that required inquiring into "thoughts" and distinguishing between nominally equal practices.
PB notes that these sort of "sincerity" inquiries seem to happen only in the cases of non-mainstream religions. This probably is true, but I think we also have a problem of small sample size--in most religion cases the "sincerity of belief" is not even in question, and for most "mainstream religions" the practice in question is recognizable to the general populace as "religious" and thus needs not to be questioned.
As in most dilemmas of this sort, line drawing is difficult. The "cheeseburger" example might be somewhat simple to resolve, it seems nearly impossible to say that a person refusing to eat a cheeseburger because his in-laws would be upset is acting within the boundaries protected by the first amendment. But what if he didn't eat a cheeseburger because he wanted to keep a kosher house so his in-laws could eat there (IE, in order to accommodate religion)? I think that might change the decision.
My gut feeling is that the first amendment applies to "potentially" religious practices where religion is implicated in the act. The fact that some religions do not eat cheeseburgers does not mean that every refusal of a cheeseburger is a religious act. However, where it is a religious root that motivates the action, even if the actor him/herself is not religious, then I think the First Amendment comes back into play. So if the actor does not eat a Cheeseburger to keep his house Kosher for relatives, I would say this is within First Amendment boundaries. (this standard might also cause us to re-examine the above "no cheeseburgers ever" case, but I don't think so--it seems that the root motivation there was to placate relatives, not to affirm or enable religion).
Now, here is the situation that I think is the toughest: What happens if a person undertakes a religious action based on a communal, but not at all religious, affiliation with that religion? For example, take a very secular Jew, who no longer believes in the religion at all. He might, however, continue to follow some of the practices based on being "part of the community" (I believe most Reconstructionist Jews fall into this category). In theory, of course, identifying with a community is not at all religious--a German going to Oktoberfest is not engaging in a religious ritual. Yet it seems very counter-intuitive to me that someone born Jewish, practices Jewish rituals, could be denied free exercise protection. Does it matter that he was born Jewish? What if someone decides that the Jewish community (as a community, but not as a religion) is appealing and decides to "join"?
An alternative way to get us out of this dilemma might be semantic--if we can pin down what exactly religion means, we can perhaps articulate clearer standards than the mishmash of Lemon, Lynch, Lee, and their pals that currently stalks the landscape of our First Amendment jurisprudence. Howard M. Friedman is probably correct to note that much of the problem is definitional--what exactly is a religion? This is a question that Court's have struggled with, really to no avail. United States v. Kauten made a noble effort at it:
Others have argued that there is no principled way to differentiate between religion and "secular" thought:
Merits of the argument notwithstanding, this cannot be accepted as a matter of law, for it would define the first amendment out of existence. It is well-settled that statutes should not be interpreted in a way that makes them redundant or meaningless. And if "anything" can be considered religious because it all takes a leap of faith, then the Establishment Clause precludes government from taking any action on the grounds that it would be acting "religiously" (I can hear the Libertarians cheering from here). The Kauten definition would also probably exclude certain things we believe are "religious" and include others that are not, if we thought carefully enough.
If nothing else, the religion clause is far less amenable to objectivity and set in stone rules than other clauses of the constitution. Religion is a very elusive beast to tame, and defining it poses unavoidable pitfalls, for "[A]ny definition of religion would seem to violate religious freedom in that it would dictate to religions, past and future, what they must be..." [Jonathan Weiss, Privilege, Posture, and Protection: "Religion" in the Law, 73 Yale L.J. 593, 604 (1964)]. Because of this, a "definitional" approach, already difficult in normal constitutional interpretation, becomes next to impossible when dealing with religious issues. Regretfully, then, Friedman's logical path, though promising, cannot bear fruit.
The question, for those of you with short attention span, is how the free exercise clause treats/ought to treat persons who engage in religious practices without holding corresponding religious beliefs. PB did some research and concludes the following:
Generally speaking, it seems that mainstream religious practices (read: Judeo-Christian) are protected as a matter of course, and courts do not even question the sincerity of the belief behind it. (Query, as I did to start this discussion, what courts would do if the practitioner openly broadcasts that she has no sincere religious beliefs.) By contrast, in the case of non-mainstream religious practices, courts do look to the sincerity of the practitioner's belief.
In Thomas v. Review Bd. of Indiana Employment Sec. Division, 450 U.S. 707, 715 (1981), the Court states that "[o]ne can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause[.]"
Refusing to eat a burger in order to avoid the wrath of the schver and schvigger (father- and mother-in-law) seems to me to be a "clearly nonreligious motivation" if there ever was one, unless one's inlaws generally provoke the fear of God. Which is possible, I suppose, at least in some families...
Obviously, Courts have, in the past, inquired into the "sincerity" of religious belief (see United States v. Ballard, 322 U.S. 78 (1944)). In my last post, a commenter told me that Courts can't act as mind-readers and can only go off the basis of actions. This strikes me as a wholly unworkable standard. Taking a day off on Saturday or Sunday is often a religiously motivated action. It also is often entirely secular. In that case, the motivation seems absolutely critical in determining whether or not one is deserving of free exercise protection (surely not everyone who wants a break on Sunday is entitled to a First Amendment claim!). There are many actions that might be mundane or even commonplace for most people, but have deep religious significance for particular practictioners. Beyond taking a day of rest on the Sabbath, consider drinking wine--an action that is quite normal and secular for most people but critical, at times, to the religious practices of, among others, Catholics and Jews. If Congress was going to reinstate the ban on drinking alcohol, it seems it could make an exception for religious purposes, even if that required inquiring into "thoughts" and distinguishing between nominally equal practices.
PB notes that these sort of "sincerity" inquiries seem to happen only in the cases of non-mainstream religions. This probably is true, but I think we also have a problem of small sample size--in most religion cases the "sincerity of belief" is not even in question, and for most "mainstream religions" the practice in question is recognizable to the general populace as "religious" and thus needs not to be questioned.
As in most dilemmas of this sort, line drawing is difficult. The "cheeseburger" example might be somewhat simple to resolve, it seems nearly impossible to say that a person refusing to eat a cheeseburger because his in-laws would be upset is acting within the boundaries protected by the first amendment. But what if he didn't eat a cheeseburger because he wanted to keep a kosher house so his in-laws could eat there (IE, in order to accommodate religion)? I think that might change the decision.
My gut feeling is that the first amendment applies to "potentially" religious practices where religion is implicated in the act. The fact that some religions do not eat cheeseburgers does not mean that every refusal of a cheeseburger is a religious act. However, where it is a religious root that motivates the action, even if the actor him/herself is not religious, then I think the First Amendment comes back into play. So if the actor does not eat a Cheeseburger to keep his house Kosher for relatives, I would say this is within First Amendment boundaries. (this standard might also cause us to re-examine the above "no cheeseburgers ever" case, but I don't think so--it seems that the root motivation there was to placate relatives, not to affirm or enable religion).
Now, here is the situation that I think is the toughest: What happens if a person undertakes a religious action based on a communal, but not at all religious, affiliation with that religion? For example, take a very secular Jew, who no longer believes in the religion at all. He might, however, continue to follow some of the practices based on being "part of the community" (I believe most Reconstructionist Jews fall into this category). In theory, of course, identifying with a community is not at all religious--a German going to Oktoberfest is not engaging in a religious ritual. Yet it seems very counter-intuitive to me that someone born Jewish, practices Jewish rituals, could be denied free exercise protection. Does it matter that he was born Jewish? What if someone decides that the Jewish community (as a community, but not as a religion) is appealing and decides to "join"?
An alternative way to get us out of this dilemma might be semantic--if we can pin down what exactly religion means, we can perhaps articulate clearer standards than the mishmash of Lemon, Lynch, Lee, and their pals that currently stalks the landscape of our First Amendment jurisprudence. Howard M. Friedman is probably correct to note that much of the problem is definitional--what exactly is a religion? This is a question that Court's have struggled with, really to no avail. United States v. Kauten made a noble effort at it:
"It is unnecessary to attempt a definition of religion; the content of the term is found in the history of the human race and is incapable of compression into a few words. Religious belief arises from a sense of the inadequacy of reason as a means of relating the individual to his fellow-men and to his universe - a sense common to men in the most primitive and in the most highly civilized societies. It accepts the aid of logic but refuses to be limited by it. It is a belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets." [Kauten, United States v., 133 F.2d 703 (2d Cir. 1943), 708]
Others have argued that there is no principled way to differentiate between religion and "secular" thought:
"On the level of epistemology, [reason and faith] are the same. [Both] begin alike from a point of ignorance...the direction each takes from this acknowledged limitation follows with equal logic or illogic...In both cases, something is missing, a first premise, and in both cases reasoning can’t get started until a first premise is put in place. What’s more, since the first premise is what is missing, it cannot be derived from anything in the visible scene; it...must be imported--on no evidentiary basis whatsoever." [Fish, Stanley. "Why We Can’t All Just Get Along." First Things 60, Feb 1996: 18-26.]
Merits of the argument notwithstanding, this cannot be accepted as a matter of law, for it would define the first amendment out of existence. It is well-settled that statutes should not be interpreted in a way that makes them redundant or meaningless. And if "anything" can be considered religious because it all takes a leap of faith, then the Establishment Clause precludes government from taking any action on the grounds that it would be acting "religiously" (I can hear the Libertarians cheering from here). The Kauten definition would also probably exclude certain things we believe are "religious" and include others that are not, if we thought carefully enough.
If nothing else, the religion clause is far less amenable to objectivity and set in stone rules than other clauses of the constitution. Religion is a very elusive beast to tame, and defining it poses unavoidable pitfalls, for "[A]ny definition of religion would seem to violate religious freedom in that it would dictate to religions, past and future, what they must be..." [Jonathan Weiss, Privilege, Posture, and Protection: "Religion" in the Law, 73 Yale L.J. 593, 604 (1964)]. Because of this, a "definitional" approach, already difficult in normal constitutional interpretation, becomes next to impossible when dealing with religious issues. Regretfully, then, Friedman's logical path, though promising, cannot bear fruit.
Monday, May 09, 2005
Or Else What?
Texas Senator John Cornyn makes the case for giving Priscilla Owen an up-or-down vote. Presumably, if the senate refuses to act, chaos and destruction will reign o'er the land as disenchanted patriots engage in regrettable, but "explainable" violence against those evil Democratic obstructionists.
My thought is that the 5th Circuit can't really get much more conservative, so why not vote on her? But frankly, I could not care less about what a fringe hack like Senator Cornyn has to say on the matter.
My thought is that the 5th Circuit can't really get much more conservative, so why not vote on her? But frankly, I could not care less about what a fringe hack like Senator Cornyn has to say on the matter.
Practicing Non-Believers
Prawfs Blawg poses a delightfully difficult first amendment question: Can a person who practices certain religious rituals, without actually believing in the religion itself, get free exercise protection?
I will have to ponder this...can somebody say Law Review Note?
I will have to ponder this...can somebody say Law Review Note?
Sunday, May 08, 2005
Stating the Obvious
This Washington Post editorial, on Montgomery County's new Sex Ed curriculum, hits a lot of the right notes. They do pan the utterly retarded stuff that is demeaning to conservative religious faiths:
But they also argue vociferously that the portions on tolerance for homosexuals, explaining the reality of homosexual families, and information on condom use are important and necessary parts of a comprehensive sex ed curriculum (I especially like that--in the part about condom usage--they emphasize abstinence as the only sure way to prevent STDs and pregnancy. That should be a fitting compromise between the left wingers and right wing religious zealots, but we all know it won't be.).
David Adnesik of Oxblog provided the link, and also blasts the Post's news coverage of the controversy as biased. I see where he is coming from, but me thinks he doth protest too much. First of all, while he makes much hay over the conservative parents "reasonable" demands (noting the dangers of oral and anal sex, for example), he says nary a word about their more insidious objections (showing homosexuality as a "normal" lifestyle, recognizing the reality of homosexuality and the vast mountain of scientific literature which suggests they are as fitting to be parents as anybody else). He mocks a liberal parent who compares the controversy to that over evolution in Kansas, when in fact that actually is relatively apt analogy. Then, to top it all off, he knocks the Post for suggesting that "liberalism is the real mainstream" in Montgomery County. As a resident of that fair section of the country, I can vouch that the portrayal is indeed accurate. Sure, there are conservatives there, but that does not change the point that Montgomery County is overwhelmingly liberal, with a 2 to 1 voter registration advantage for Democrats. In the last election, it voted 65% to 32% Kerry over Bush, and 72% to 26% Mikulski over Pipkin in the Senate race. And for those who would point to the long time representation of the 8th district (which covers most of MC) by moderate Republican Connie Morella, I'd point that a) she was ousted in 2002, an overall awful year for Democrats and b) that now that we have a Democrat in congress, Chris Van Hollen, he got a whopping 74% of the vote in his first time up for re-election--staggering numbers for a first term representative who took just 53% in his bruising battle against Morella. You can legitimately criticize the Post for a lot of things, but calling Montgomery County "liberal" is not one of them.
UPDATE: Greg Piper doesn't believe that Montgomery County is liberal (or at least not Bethesda, my hometown). His evidence is the lack of Bohemian Coffee shops. I can't vouch for that (I don't drink coffee), but whatever we lack in quaint coffee houses we make up for with awesome bagel places (Georgetown Bagelry would be a number 1 gun anywhere else, were it not for the ecstasy that is Bethesda Bagels).
I find it odd that while nobody would ever contest folks saying that Utah or Idaho is predominantly conservative, but somebody dares suggests that a place outside of San Francisco, New York, or Boston is mostly liberal and pundits immediately think BS. Bethesda and MC are liberal. Get over it.
School officials need to remove some of the inappropriate "teacher resource" material accompanying the curriculum, particularly documents that praise some religious denominations and criticize others; it's no wonder some parents were upset about that. Though students don't see this material, it shouldn't have been deemed acceptable as the basis for teachers to plan lessons, and it shouldn't have taken a court case for Mr. Weast to learn of it.
But they also argue vociferously that the portions on tolerance for homosexuals, explaining the reality of homosexual families, and information on condom use are important and necessary parts of a comprehensive sex ed curriculum (I especially like that--in the part about condom usage--they emphasize abstinence as the only sure way to prevent STDs and pregnancy. That should be a fitting compromise between the left wingers and right wing religious zealots, but we all know it won't be.).
David Adnesik of Oxblog provided the link, and also blasts the Post's news coverage of the controversy as biased. I see where he is coming from, but me thinks he doth protest too much. First of all, while he makes much hay over the conservative parents "reasonable" demands (noting the dangers of oral and anal sex, for example), he says nary a word about their more insidious objections (showing homosexuality as a "normal" lifestyle, recognizing the reality of homosexuality and the vast mountain of scientific literature which suggests they are as fitting to be parents as anybody else). He mocks a liberal parent who compares the controversy to that over evolution in Kansas, when in fact that actually is relatively apt analogy. Then, to top it all off, he knocks the Post for suggesting that "liberalism is the real mainstream" in Montgomery County. As a resident of that fair section of the country, I can vouch that the portrayal is indeed accurate. Sure, there are conservatives there, but that does not change the point that Montgomery County is overwhelmingly liberal, with a 2 to 1 voter registration advantage for Democrats. In the last election, it voted 65% to 32% Kerry over Bush, and 72% to 26% Mikulski over Pipkin in the Senate race. And for those who would point to the long time representation of the 8th district (which covers most of MC) by moderate Republican Connie Morella, I'd point that a) she was ousted in 2002, an overall awful year for Democrats and b) that now that we have a Democrat in congress, Chris Van Hollen, he got a whopping 74% of the vote in his first time up for re-election--staggering numbers for a first term representative who took just 53% in his bruising battle against Morella. You can legitimately criticize the Post for a lot of things, but calling Montgomery County "liberal" is not one of them.
UPDATE: Greg Piper doesn't believe that Montgomery County is liberal (or at least not Bethesda, my hometown). His evidence is the lack of Bohemian Coffee shops. I can't vouch for that (I don't drink coffee), but whatever we lack in quaint coffee houses we make up for with awesome bagel places (Georgetown Bagelry would be a number 1 gun anywhere else, were it not for the ecstasy that is Bethesda Bagels).
I find it odd that while nobody would ever contest folks saying that Utah or Idaho is predominantly conservative, but somebody dares suggests that a place outside of San Francisco, New York, or Boston is mostly liberal and pundits immediately think BS. Bethesda and MC are liberal. Get over it.
Step Back
Kevin Drum gives a pessimistic outlook on the possibility of saving Darfur:
I've been a big booster of sending in Western troops. But Drum has a point, they aren't exactly in common supply right now. I think we probably could rustle up enough if there really was a will to do it. But I'm skeptical that the motivation will ever come to override the inertia that dominates international affairs.
Drum says he might be willing to more vocally support a Darfur operation if he saw a clear plan that shows how, with whom, and to what end we will intervene. Perhaps someone should get on that...?
Like any geopolitical crisis, Darfur is complex. But at the risk of simplifying to the point of incoherence, there are really only two options on the table:
1) Allow the African Union to take the military lead and provide them with money and logistical support. As far as I can tell, this is just wishful thinking. The AU has never been effective at much of anything, it's riven by internal politics, and all the money and materiel in the world won't change that in the short term. There may be pressure points here that I'm missing, but relying on the AU strikes me as little more than an excuse to sound virtuous while doing nothing.
2) Send in western troops. But whose? Both America and Britian are mostly tied down in Iraq and Afghanistan. NATO's deployable troops are largely committed to Afghanistan. France, which has both bases and (a small number of) troops in central Africa, has shown little interest in using them.
This is not a trivial problem. "Troops" and "deployable troops" are not the same thing, and very few countries aside from the U.S. and (to a smaller extent) Britain have troops in any significant numbers that they can deploy overseas. This year-old article by David Englin outlines the military situation, and although military intervention is indeed doable, my guess is that it would take a serious commitment to local air superiority plus a minimum of three or four divisions of combat troops with rules of engagement sufficiently robust to allow them to stop the Janjaweed slaughter. Make no mistake: this would basically be a declaration of war against Sudan.
I've been a big booster of sending in Western troops. But Drum has a point, they aren't exactly in common supply right now. I think we probably could rustle up enough if there really was a will to do it. But I'm skeptical that the motivation will ever come to override the inertia that dominates international affairs.
Drum says he might be willing to more vocally support a Darfur operation if he saw a clear plan that shows how, with whom, and to what end we will intervene. Perhaps someone should get on that...?
The Blogroll Kritik
Never thought I'd see the day, but here we have a Critical attack on the blogroll over at Burningbird. I got the link through Bitch Ph.D., and I find both her defense of blogrolling compelling as well as the original claim.
I'm not ready to give up my blogroll now. For now, at least, I'm somewhat safe, as I am clearly still a "little guy" in the blogosphere and thus not part of the hegemony that Burningbird is attacking. I wish I had time to put down some more thoughts on this, but I don't tonight. I'm tired.
But check back, I might return to this later. It's a rare day when I can combine my love of Post-Modernism and my love of Blogging, so I will not pass it up lightly.
I'm not ready to give up my blogroll now. For now, at least, I'm somewhat safe, as I am clearly still a "little guy" in the blogosphere and thus not part of the hegemony that Burningbird is attacking. I wish I had time to put down some more thoughts on this, but I don't tonight. I'm tired.
But check back, I might return to this later. It's a rare day when I can combine my love of Post-Modernism and my love of Blogging, so I will not pass it up lightly.
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