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No Mr. President I Do Not Trust You or the Courts with the Fourth Amendment

In the midst of revelations that the Federal Government has been indiscriminately spying on who millions of Americans call on their telephones and how often, President Obama said yesterday, “If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process, and rule of law, then we’re going to have some problems here.”

The problem is that federal judges ran away from the Constitution years ago on this very issue, and the President’s characterization of this program as a “modest encroachment” on privacy shows that he either lacks integrity or he has an impoverished conception of privacy. Surely, it is a serious privacy intrusion to collect information about the associations of millions of Americans without probable cause. This is an area where privacy and the First Amendment guarantee of freedom of association run together.

The notion that we should trust federal judges to uphold the Fourth Amendment is impossible to take seriously.  As the Supreme Court stated in United States v. Miller, “This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” This third party principle permits the Federal Government without probable cause or even reasonable suspicion and without any notice to you: to get all of your bank records, a record of who you have sent mail to and received mail from, and who you have phoned and who phoned you. Indeed, the third party principle allows the F.B.I. to search your garbage without probable cause. Why don’t these actions violate the Fourth Amendment? The courts we are supposed to trust, according to the President, say these actions revealing intimate details of our private lives are not “searches” within the meaning of the Fourth Amendment. The claim is that we have no reasonable expectation of privacy in material we have exposed to a third party like a bank, a post office, or an internet provider.  This line of reasoning is worthy of a totalitarian state. That I use a credit card and the bank is aware of the transactions should not remotely suggest that I have no reasonable privacy interest in the bank's making the material available to others.   

So no I do not trust the Federal courts to enforce the Fourth Amendment. Fortunately, what the Federal courts permit need not be what law enforcement agencies are permitted to do. Many states have refused to follow the Supreme Court’s lead and afford greater protection for privacy. Moreover, the Congress can provide limits on the third party principle. And, indeed, no one forced the President to follow the third party principle. Do I expect the Congress to reject the third party principle? No. But I do think it is imperative for the public to renounce this utterly immodest and shameless invasion of privacy.

Am I supposed to trust you Mr. President with the Constitution, the President who after saying he would abandon the Bush program of spying, secretly maintained it? No Mr. President, I do not trust you.

Should the IRS Pay Special Attention to those Groups Who Believe Taxes are too High?

Is it unreasonable to suppose that groups who are ideologically committed to the proposition that taxes are too high are more likely than other groups to play fast and loose with the tax laws? If so, would it not make sense for the IRS to pay special attention to these groups to make sure they comply? Is this significantly different than paying special attention to those who meet a drug courier profile or to those who match a dangerousness profile upon entering the country? Of course, it is possible that the IRS paid special attention to conservative groups because of distaste for their politics. But it is also possible that the IRS paid special attention to these groups without regard to their own feelings about the politics of the groups they looked at. I cannot say that about the Republicans or the Democrats. The Speaker of the House is ready to send someone, anyone, to jail before the facts are determined. Fox News and George Will compare this to Watergate with no evidence that the President was remotely involved. Worse, the Democrats support throwing people under the bus to show their disapproval of what might have happened without a showing that the stigmatized individuals were any more involved in partisan discrimination than the President. Political meanness, corruption, and cynicism is not a good substitute for political morality.

Why is Religion a First Amendment Stepchild?

I do not know, but the law seems to treat religion as less important. If a law is not aimed at speech, but hits communicative conduct (law outlaws destruction of a draft card which might or might not be done in the presence of another), the law can be constitutionally applied only if it furthers a substantial state interest by means no greater than is essential to the furtherance of that interest. But if a statute prohibiting particular conduct (eg., ingesting peyote) whether religious or not religious, hits religion (e.g., a Native American religious ceremony involving the ingestion of peyote), no First Amendment test applies unless another constitutional right is also burdened or the government is singling religion out for special treatment.

But suppose a First Amendment test is warranted in a statute directed at the content of a communication or in a statute primarily aimed at a form of religious conduct. In the speech context the courts require the government to show that the statute or regulation is necessary to further a compelling state interest. This is called “strict scrutiny.” On the other hand, if a statute is directed against religious conduct, the courts apply a less demanding standard to the government action even though the courts will label their standard as “strict scrutiny.”

The courts have not explained the basis for this different treatment. Perhaps they think the justification is obvious. But I think you have to get up very early in the morning to explain the different treatment of speech and religion – particularly when these rules have been fashioned by judges who are members of religious associations. Although I am writing this post very early in the morning, I have to say I am baffled.

Who Cares about the Poor

April’s Harper’s Index reports that only 42% of American women believe they have a personal responsibility to help the poor. The report is even more disappointing for American men. Only 27% believe they have a personal responsibility to help the poor. The source for these statistics is Environics Research.

I am not sure what to make of this. In any given year approximately three quarters of American families give money to charities though it is not clear what percentage of these families give money to the poor. We do know that 75 million American give no money to charities of any kind.

In any event, most politicians obviously think the public does not care much about the poor. The poor are denigrated by Republicans and largely ignored by Democrats. I have no confidence that political leaders will cultivate concern about the poor. And such leadership certainly will not come from those who preach the prosperity gospel.

If the public does not care about the poor, you have to wonder what religious leaders have been doing or why they have been ineffective. I am an ex-Catholic, but I am praying for the success of Pope Francis.

 

Political Advocacy and Academic Freedom

On Saturday, Ross Douthat wrote about the conflict between a neutral and impartial press and a press out to advocate for social justice. I was reminded of those who have what I think is a shriveled sense of the role of academics and the nature of scholarship.

There are many, but Larry Alexander (77 U.Colo.L.Rev. 883 (2006)) has an excellent statement of what might be the dominant view (though his essay is marred by a myriad of unsupported or thinly supported conclusions about political advocacy in the contemporary university, conclusions that may or may not be correct). Alexander maintains that an academic follows arguments and evidence where they lead regardless of whether they support his political goals. He contrasts this with the political advocates who know the conclusions they wish to reach and cast about only for arguments and evidence that supports their views. These characterizations are framed by a guarded (if I read him correctly) admission that normative scholarship is properly a part of university life.

Alexander describes normative argument as a branch of philosophy and asserts that there are well established standards for judging normative discourse that do not depend on one’s normative commitments. I agree that normative discourse generally can and should be evaluated without regard to one’s normative commitments and that there are well established standards for doing so, but I do not agree that normative arguments are a branch of philosophy. Rather philosophy as a discipline has a certain style of normative argument. Law school scholarship is filled with normative argument; it usually is not philosophic in character; and philosophers would be less competent to judge it than law professors. The same is true of other disciplines though I think a significant problem with the university is that there is not enough normative argument particularly in political science departments.

I have given Alexander a narrow reading on the role of normative argument in the university, and he might well agree with what I have said. My main issue is what appears to be a narrow reading of academic. I do not deny that the impartial academic described by Alexander is one form of academic. I also agree that professors who employ only arguments that support their position while ignoring arguments on the other side are engaged in shoddy scholarship. But political advocacy can be excellent scholarship when it is good advocacy. It simply does not matter whether the scholar started out with a political conclusion in mind or got to the conclusion in the course of solving a puzzle. Indeed, I suspect that most of the best normative scholarship has been produced by the committed rather than the puzzle solvers, mainly because I think most scholarship gets started by a strong commitment or intuition rather than by a scratch of curiosity – though I have started projects from both perspectives.

Alexander argues that political advocates do not deserve academic freedom. But this loses sight of an important argument for academic freedom. It is highly desirable for scholars to publish their work based on their independent views rather than to have it controlled by a central administration. In a democratic society, it is particularly important to have political arguments developed in an independent way.  Alexander wants depoliticized scholarship and hiring. I agree that scholars should generally be hired regardless of political view, but in a society where sound bites and televised shouting pass for political discourse, we need more well-argued political advocacy – not less. 

DOMA, Federalism, and the Need for Deliberation on the Left

When Justice Kennedy suggested that he might vote to invalidate DOMA on the ground that the Constitution does not give the Congress the power to define the family, many liberals were cautioned to be careful of what you wish for. In the current political constellation, liberals favor a strong Federal government with generous interpretations of the powers conferred by the Constitution. This is understandable given the conservative attempt to block the New Deal and the Southern emphasis on state’s rights which served as a proxy to enable continued race discrimination. Of course, it is integral to liberalism to support strong legislative power to enforce the Civil Rights Amendments. And the Court’s stingy interpretation of section five of the fourteenth amendment strikes me as a betrayal of clear constitutional principles. (You would almost think the Civil War was never fought).

But the favoring of strong commerce power seems to me to be less integral to liberalism or the left and more a product of path dependence. I am not suggesting that the Federal government should not have the power to regulate the national economy and I regard the conservative claim that Congress lacked power under the commerce clause to enact the Affordable Care Act to be indefensible (even though the claim was accepted by five of the Justices). But I think the Court was right to say that Congress lacked power to outlaw the possession of a gun near a school. It may play well to the folks back home to know that their congressman opposes guns near school, but the commerce clause argument wrongly assumes that federal intervention is needed for a local law enforcement problem while relying on remote commercial effects.

For those who think it is a mark of the left to demand centralization, I would merely observe that the Students for a Democratic Society and Gandhi were strong proponents of decentralization. I doubt many conservatives would regard them as fellow travelers.  

The Change in Catholic Thinking About Jews and Judaism

With permission from George Conk, I am posting his review of From Enemy to Brother first posted at Blackstone Today here.

There is one other event which transcends the limits of the year, since it is measured in centuries and millennia in the history of this city and of this Church. I thank Divine Providence that I was able to visit our "elder brothers" in the faith of Abraham in their Roman Synagogue! Blessed be the God of our fathers! The God of peace!

Pope John Paul, II December 31, 1986 

How did this epochal change of understanding and its particular expression of brotherhood come to pass, this official, and personal Papal renunciation of centuries of Christian disparagement of Jews and Judaism?  John Connelly, UC Berkeley historian, finds its roots in the efforts of Catholic intellectuals - largely converts - from the border regions of northern and central Europe.  In his much lauded  intellectual history From Enemy to Brother Connelly justifies his subtitle `The Revolution in Catholic Teaching on the Jews 1933 - 1965'.
It is a brilliant intellectual history locating the origins of the change in Austrian and central European Catholic intellectuals who fought Nazi racism and sought to respond appropriately to the Holocaust.  The struggle was not a liberal repudiation of racism nor was it a simple repetition of "love your neighbor".  It yielded an epochal theological embrace - that Judaism is the root, and Christianity a branch grafted to the root.  They finally accomplished a revolution at Vatican II, abolishing the "mission to the Jews" and transforming the relation of Christian to Jew as an ecumenical one of equals, not of evangelist to stranger.

At the center of the narrative are Johannes Osterreicher - an Austrian Jewish convert and Karl Thieme - a Protestant convert - as intellectual sparring partners struggle against Nazi racism, and then `anti-judaism' to find a basis for resolving the ancient conflicts of Jews and Christians.  They developed their theology rooted in Paul - the self-described Apostle to the Gentiles.  In his letter to the Romans Paul affirmed God's loyalty to the Jews, but not without ambiguity:

In respect to the gospel, they are enemies on your account; but in respect to election, they are beloved because of the patriarchs. For the gifts and the call of God are irrevocable.  [Romans 11]

This yielded Nostra Aetate, the great Vatican II statement of respect for other religions and repudiation of anti-semitism and embrace of the Church's Judaic "root" to which Gentiles are "grafted", concluding:

We cannot truly call on God, the Father of all, if we refuse to treat in a brotherly way any man, created as he is in the image of God. Man's relation to God the Father and his relation to men his brothers are so linked together that Scripture says: "He who does not love does not know God" (1 John 4:8).
No foundation therefore remains for any theory or practice that leads to discrimination between man and man or people and people, so far as their human dignity and the rights flowing from it are concerned.

The Church reproves, as foreign to the mind of Christ, any discrimination against men or harassment of them because of their race, color, condition of life, or religion. On the contrary, following in the footsteps of the holy Apostles Peter and Paul, this sacred synod ardently implores the Christian faithful to "maintain good fellowship among the nations" (1 Peter 2:12), and, if possible, to live for their part in peace with all men, so that they may truly be sons of the Father who is in heaven. 

Though generally laudatory, Garry Wills, in the New York Review of Books, lamentsthat Connelly   did not write a biography of John nee' Johannes Osterreicher.   Wills would have done better to confess a personal preference for biography.  But I, like Michael Winter, in a review at NCR online find Connelly's account of the exegetical history to be  compelling.  And I agree with Connelly's student Gene Zubovich.  He writes at U.S. Intellectual History Blog that Connelly has produced  an exciting intellectual history which opens new avenues of exploration - including the remarkable observation that in the Church's triumph over racism and anti-Judaism liberalism was not a force, but rather the shock of the Holocaust demanded reconciliation of its horrors with a Christian eschatology to which I, like other moderns, have payed little heed.

Same Sex Marriage, Commitment Ceremonies, Speech and Religion in the Great State of New Mexico

Last week I went to Santa Fe to see the New Mexico Supreme Court oral argument in a case where I had filed an amicus brief. Elane Photography, LLC v. Willock. The case involved a commercial photographer (more precisely her company) who refused to photograph a same sex commitment ceremony on the ground that she and her husband (the other member of the closely held company) were politically and religiously opposed to such ceremonies. The New Mexico Human Rights Commission and the New Mexico Court of Appeals concluded that she had violated the New Mexico Human Rights Act which prohibits discrimination on the basis of sexual orientation. The Commission and the appellate court rejected the argument that the act as applied violated free speech rights or freedom of religion rights.

My brief (on behalf of Mike Dorf and I) argued that the act as applied did not violate free speech rights. We took no position on the religion issue. The five member New Mexico Supreme Court is an impressive court. The justices are smart, quick, concerned, and very well prepared. Judging from the oral argument, it would appear exceedingly unlikely that they would find a free speech violation. On the other hand, it is possible that the photography company could prevail on freedom of religion grounds depending on how the Court interprets and/or applies a New Mexico statute protecting religious liberty. I think the outcome on that front is in some doubt.

One of the side light arguments in the case concerned the standard of review and its application. The company argued that the anti-discrimination interest was not compelling because New Mexico does not take it seriously enough to authorize same sex marriage. I had argued that the compelling governmental interest did not apply in any event. The statute is directed at discriminatory conduct and incidentally hits speech. The government interest is entirely unrelated to the message contained in the potential photographs. The statute applies to commercial carpenters, plumbers, restaurants, hairdressers, and photographers. If a First Amendment test applies, the test should be O’Brien (a somewhat toothless form of intermediate scrutiny), not a compelling state interest test.

It turns out, however, that there is some question whether or not same sex marriage is authorized in New Mexico. Three days ago, the City Attorney of Santa Fe released an opinion for the City Council (here) which argues that the New Mexico marriage law does not specify anything about the gender of the parties and that the New Mexico Constitution would invalidate any gender limitations because it requires equal treatment on the basis of sex. He concludes that same sex marriage is legal in New Mexico and that County Clerks may not refuse licenses to same sex couples. For excellent discussion by Andrew Koppelman, see here.

I doubt that this development will have much impact on the outcome in the Willock case (though it will be interesting to see if the Court refers to the City Attorney’s opinion), but it serves as a reminder that even if the Supreme Court holds this term that same sex marriage is not required under the equal protection clause (as Mike McConnell argues in today’s Wall Street Journal, it is doubtful that there is sufficient standing in the California case to give the Supreme Court jurisdiction to make that ruling), the states will be free to move forward on their own. 

The Next Pope: Why Non-Catholics Should Care

Jonathan Sacks, the Chief Rabbi of the United Kingdom, was once asked what he thought about the Anglican Church being the Established Church of England. He  responded that an established church was a good thing because it emphasized the importance of spirituality in our lives.

So too, whether we are Catholic or not, religious or not, we should care about who is selected as the next Pope. The Pope has the platform to be a strong voice for spirituality against materialism, for care of others as opposed to self-serving egoism, for peace as opposed to war, for harmony with and stewardship of the earth as opposed to environmental degradation, for gratitude of creation as opposed to unremitting despair.

Of course, the next Pope will have to do much to show that the Church is serious about the sex scandal. Eliminating mandatory celibacy would address the lack of access to the sacraments, as Charles Reid suggests here, and it would be widely perceived as addressing the sex scandal (though it would not be presented in that way). My guess is that mandatory celibacy will not be eliminated in the short run and that the new Pope is unlikely to retreat from the traditional outmoded teachings of the Church on a variety of sexual issues.

My main hope for activity of the new Pope is that he place emphasis not on the hot button sexual issues, but on a problem that unites religious leaders, namely concern for the poor.  Concern for the poor is at the heart of the Gospel, but in our country populated with “Christian” political leaders, concern for the poor is conspicuously shallow. The Republicans seem to think the poor exist because they are shiftless and lazy. Perhaps more disturbing, the Democrats do not mention the poor because the votes aren’t there. Lyndon Johnson’s war on poverty is a war our citizens do not want to fight. If the Gospel teaches that we are here to serve others, the very existence of the poor is a striking example of injustice and institutional sin, of how far we as a society have fallen short.

My hope for the new Pope (and Michael Sean Winters expresses the same view in today’s Wall Street Journal) is that the Pope on his world tours include visits to sites where the poor are. Loaves and Fishes, a community kitchen for the poor (though all are welcome) in Ithaca would happily welcome the Pope and, if he said Mass, it would be well attended by Catholics and non-Catholics alike. I suspect the new Pope will not be coming to Ithaca, but there are community kitchens and shelters and medical interventions and slums all over the world. The Pope could do much to dramatize the existence of the poor and more important to humanize them as well.

Michael Harrington once aroused the conscience of Americans about poverty with his book The Other America. An effort in the direction by the Pope would do even more to help the poor; it would help the positive Christian image of the Church (selling off the rich treasures in the Vatican museum could help as well); and it would send a strong message (in conjunction with other activities and addresses of the Pope) that the hedonistic, materialistic trappings of the modern world as we know it in the West are a distraction from the real meaning of our lives.

Justice Scalia, Voting Rights, and Interpretive Hypocrisy

Many pundits have rightly deplored Justice Scalia’s characterization of voting rights as “entitlements.” Less focus has been devoted to his blatant interpretive hypocrisy. Scalia claims to follow the original understanding of the Constitution. He, therefore, should be following the original understanding of the Fifteenth Amendment which gives Congress the power to enforce the right to vote without racial discrimination. Opponents of the Voting Rights Act argue that states with a prior record of discrimination are demeaned by a requirement that they submit any changes to their voting law to the Justice Department. Justice Breyer had the short answer to this inappropriate appeal to federalism, “What do you think the Civil War was about? Of course, it was about treating some states differently than others.”

Justice Scalia’s walk into outer darkness was triggered by the fact that the House had overwhelmingly supported the bill and the Senate had been unanimous. In order to avoid paying deference to the body constitutionally entitled to enforce the legislation, he said that the high margins of passage were

“attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. 

"I don't think there is anything to be gained by any Senator to vote against continuation of this act, . . . "And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there's a good reason for it. . . .  Even the name of it is wonderful: The Voting Rights Act, . . .Who is going to vote against that in the future?"

I would respond to Justice Scalia’s question with three others: How could one possibly deny the Fifthteenth Amendment was intentionally calculated to run roughshod over the "equal dignity" of the Southern States? How could one possibly claim that under the original understanding of the Fifteenth Amendment Shelby County, Alabama, the party bringing the action against Section 5 of the Voting Rights Law is entitled to equal dignity with other counties and states when it comes to avoiding race discrimination? After all, under Section 5, the Justice Department has blocked 240 attempted changes in Shelby County’s voting laws on the ground that they would disadvantage minorities. And, even more important, since when did it become part of the original understanding of the Constitution that the deference owed to Congress is rightly supplanted by the amateur analysis of an arrogant ideologue wearing a black robe.

Tis Late

A friend sent me the poem at this link thinking I would like it. Go here.

I do.

New Blog Member

I would like to welcome Charles Reid to Religious Left Law. We are fortunate to have him.

My Love/Hate Relationship with Ronald Dworkin's Scholarship

Ronald Dworkin died last Thursday. I met him twice, but I doubt he could have picked me out of a lineup. Nonetheless, he had an enormous influence on my scholarship. Simply put, much of my scholarship has been directed against his. I do not mean this as a cheap shot. Dworkin was a scholarly giant writing squarely in the Kantian tradition, but I rebel against that tradition, or more precisely, a significant part of it.

It was Dworkin who first drew me into an interest in political theory. He wrote an essay on liberalism many decades ago in which he argued that liberalism was committed to the view that the state should be neutral about the good life. My reaction was that this was not the liberalism I knew and appreciated. The state had never been neutral about the good life, never would be, and never should be. Even more important Dworkin’s thesis (which was qualified and refined over the years) was set in a larger theory claiming that moral and political questions could all be resolved by reference to fresh deductions from a small set of premises. My reaction has been that free speech, for example, clashes with too many other values and interests to hope or expect that the right answer to these problems could ever be found by deductions from a small set of premises. To be fair, Dworkin conceded that a right like freedom of speech could be limited if it conflicted with another right, but the criteria for determining the content of a right were too elusive for my tastes. Over the years, I realized that I had a temperamental objection to grand theory. It was not just that I thought grand theory was pragmatically unrealistic. I did not want grand theory to succeed. It was too simple; too pat; and insufficiently appreciated the romance and mystery of moral life.

At the same time, I realized that those who write in the tradition of grand theory have reasons of temperament to want it to succeed that go beyond pragmatic considerations, and I wrote about that (The First Amendment, Democracy, and Romance, Ch. 4) after giving a talk at NYU, the home of grand theory either in the realm of political theory like Dworkin or in the realm of ACLU free speech liberalism (NYU was the ACLU’s most important law school home many decades ago). My talk was not well developed, but the defensive reaction I received even from ordinarily gentle folk who fiercely resisted my psychological speculation showed me I was on to something. (In fairness, Larry Sager was enormously helpful).

If I disagreed with Dworkin on much and am grateful that he inspired me to fight against him, I agreed with much as well. One does not have to be a devotee of grand theory to recognize the importance of equality, dignity, and autonomy, and Dworkin championed all three in eloquent and thoughtful ways. Similarly there are many areas where instrumental arguments are out of place, as Dworkin so frequently argued. Even more important, Dworkin brilliantly argued that law is not just a set of rules, but policy arguments and moral principles are a part of law. Indeed, as I interpret him, Dworkin claimed that there was always a right answer to legal, moral, and political problems. This was part of his theory that I most appreciate: moral skepticism is not an appropriate foundation for liberalism; it is an incoherent and psychopathic basis for law and politics.  I think this is an area where Mill and Dworkin come together though Mill laid more stress on our fallibility in determining what the right answer might be.

Dworkin was an eloquent champion of civil liberties and a public intellectual. He was an important moral, political, and legal theorist. He is gone. But he has left a body of work that will be influential for a long time to come.

Theology and the University: With Notes on Capitalism

American universities are more European than Europe when it comes to religion. They are generally secular to the core. American academics typically believe that science shows that religion is silly superstition – it certainly has nothing to contribute to law and politics.

I leave aside the extent to which major religious faiths accept the conclusions of modern science. It seems to me that universities are filled with ignorance about the intellectual contributions of theologians to various issues in ethics, politics, and law. That is one of the reasons I assign Karen Lebacqz’s book Six Theories of Justice in my seminar on Constitutional Law and Political Theory.

The book has an accessible summary of the views of Rawls and Nozick together with an account of the critical literature. And, for readers unacquainted with their writings, an account of this character is not easy to find. More important, the book brings theologians into serious dialogue with political theorists. I particularly enjoy discussing the chapters on the Catholic Bishop’s account of political economy and the views of  Reinhold Neibuhr (and wish I had time to discuss the chapter on Jose Porfirio Miranda, a liberation theologian).

The Bishops’ critique of unrestrained capitalism and strong views of social justice come as a surprise to students who associate the Bishops with their views on sexual issues and women. They argued against the inegalitarian character of the capitalist system, for a right to material welfare, and for the right to a job at the same time they inveighed against hedonism and materialism. The Bishops provide an obvious contrast to the libertarianism of Nozick. And they place even greater emphasis on economic justice and political participation than Rawls.

Niebuhr also issued criticisms of capitalism that were similar to the Bishops. And he also criticizes consumerism. As John Patrick Diggins wrote in his excellent little book, Why Niebuhr Now?, Niebuhr said that “Love of possessions is a distraction that makes love and obedience to God impossible.”  He deplored the factory conditions prompted by the structure of capitalism. He laid some of the blame at the feet of the “complacent” middle class and the Church. As Niebuhr put it, “A National Thanksgiving if it is meant to express gratitude for material bounty becomes increasingly a pharisaic rite.”

But his focus on sin collided sharply with the perspective of the Bishops. To be sure, the idea of sin is hardly foreign to Catholic thought. But Catholic thought for a long time focused on sins, not sin. It sought to categorize types of sin and the appropriate penance that should be imposed in confession. Moreover, Catholics understood sin as separation from God. Nonetheless, Catholic thought entertains a sunnier view of human nature than Niebuhr. Catholic thought is animated by conceptions of the common good, of shared interest, of consensus possibilities. The Bishops thought that the interests of labor and capital could be harmonized. Instead, Niebuhr saw politics as a clash of usually irresolvable selfish interests. For Niebuhr, individuals are permeated with sin: making themselves the center of the universe, animated by pride, and thoroughly self-deceived. Groups are even worse. Americans fight wars for material reasons while convincing themselves that they fight them to promote democracy and to help the very people whose lives they make miserable.

From Niebuhr’s perspective, James Madison was on the right track in trying to balance interests against interest, but I doubt he would have thought that leaders free of those interests would make judgments in the common good or that there is a common good to be found.

In the end, I think the criticism of capitalism by the Bishops is too restrained and the view of harmonizing interests too precious (though it may have been a politically calculated move for them to put their heads in the sand). At the same time, I think Niebuhr is excessively cynical though he is far more right than most of us would like to admit. I do know that these theological writings prompt good discussions in connection with Rawls and Nozick. Nor should it be surprising. Theological ethics in a variety of faith traditions have been developed in communities of discourse that go back many centuries. Why wouldn’t they have something interesting to say about a broad range of legal, political, and ethical topics? There may be good historical explanations for why theologians are absent from reading lists in law, politics, and ethics, but I do not think there are good reasons for their exclusion.

First Amendment Madness

I have previously argued that the Supreme Court’s holding that the intentional infliction of emotional distress of funeral mourners is protected speech is a special form of First Amendment madness. The Court suggested that place restrictions on speech near a funeral might be constitutional, and the Eighth Circuit Court of Appeals has upheld that position. Earlier this month, Creve Coeur, Missouri passed an ordinance forbidding picketing within 300 feet of a funeral during the time period an hour before and an hour after the event. See here. Why is Creve Coeur passing this ordinance? It is obviously in reaction to the Westboro Baptist Church, the one organization specializing in funeral protests, the same organization that inflicted intentional infliction of emotional distress in Snyder v. Phelps. Passing even a content-neutral ordinance with the intention of squelching the speech of a particular speaker or organization is clearly an illicit purpose. 

My concern is not that the First Amendment has become complicated. That has been true for many years. My complaint is that the Court has launched a war on common sense. The intentional infliction of emotional distress should not be a constitutional right, and statutes passed to squelch particular speakers should not be constitutional. The Court has generally managed to protect speech that should not be protected (think violent video games) and allowed sanctions against speech that should be protected (think of various dissent cases including sleeping in Lafayette Park to protest government homeless policies). This is not a cause for celebration.

Law and Religious Traditions

A few years ago I was invited to a conference on law and religion at St. John’s. One of the highlights of the conference for me was a dinner with Mark Movsesian and Perry Dane. Mark has expertise in the role of law in the Islamic tradition and Christianity; Perry in Judaism. I was raised as a Catholic, albeit bereft of expertise. During the dinner, Mark and Perry argued that the law played a stronger role in Islam and Judaism than it does in Catholicism. I fought them off, arguing that this argument downplays the role of canon law, the myriad classifications of what to do and what not to do, the determinations of what was a venial or mortal sin, and the theorizing of what was an appropriate penalty. What can I say? Perry and Mark showed me that the aspects of human activity regulated by Catholicism were dwarfed by the aspects of human activity covered by Islam and Judaism. And another speaker at the conference gave a paper emphasizing the centrality of interpreting Jewish law to the Judaic tradition.

On reflection, I wish I had asked Perry and Mark about natural law in the Islamic and Judaic traditions because law plays a more central role in traditional Catholic philosophy than I appreciated at the time even though it does not end up in precisely regulating human life as pervasively as the other two traditions. As James Gustafson explains in his outstanding book, Protestant and Roman Catholic Ethics, according to the Catholic perspective, “the moral law was grounded in creation, and thus was a gift of grace. The moral law in nature participates in the eternal law in the mind of God. The civil law and the customary law participated in the natural law. The revealed moral law in scripture was a clear expression of the natural law; it did not establish a different morality. The ‘new law,’ the law of the Gospel is preponderantly ‘the grace of the Holy Ghost, which is given through faith in Christ’; it is primarily an inscription in the heart and only secondarily a written law.” Id. at 13.  I assume from what Perry and Mark said at dinner that this last point marks out a profound difference in the conception of law of the different traditions, but I wonder if it can be said that law however differently understood plays a central role in the three traditions.

Dr. King and Citizens United

Martin Luther King Day and the anniversary of Citizens United fall on the same day this year. Some might think the two have nothing to do with each other. After all, King was concerned about race and Citizens United has to do with the role of corporations in American society. This perspective, however, depends on a sanitized version of Martin Luther King. It focuses on I Have a Dream and ignores Beyond Vietnam (see here). It is well known that King opposed the war in Vietnam, but few remember why. It was not just because the war gobbled up resources that could have been used to help the American poor or that it brutalized our soldiers (with disproportionate impact on blacks) and the Vietnamese or that it violated basic principles of Christianity.

King argued that our foreign policy was consistently on the wrong side of a world revolution. We had allowed our foreign policy to be guided by the interests of investors even if it meant supporting brutal dictators. He said that, “the role our nation has taken [is the] the role of those who make peaceful revolution impossible by refusing to give up the privileges and the pleasures that come from the immense profits of overseas investments.”  If  I Have a  Dream focused on the end of racism, Beyond Vietnam confronted the systemic aspects of the evil that needed to be confronted: “When machines and computers, profit motives and property rights, are considered more important than people, the giant triplets of racism, extreme materialism, and militarism are incapable of being conquered.”  Only a distorted view of Martin Luther King can obscure his recognition of the dangers of corporate power in our political process. It makes sense that we would honor Dr. King and oppose Citizens United on the same day. The two causes are one.

 

 

Journalism and Trillion Dollar Coins

Cookie Roberts in her typically dismissive cynical tone mocked the trillion dollar coin solution tiis morning on NPR. As is so often the case, her tone substituted for argument. Yet, as Larry Tribe has argued, the proposal is constitutional, and as Paul Krugman has argued, the proposal makes economic sense in these times where inflation is not a serious issue. Minting coins is nothing new, and it is a superior alternative to shutting down the government. Roberts succeeds in mocking this because a trillion dollar coin sounds silly. The packaging is not great, but NPR could use a journalist who sees beyond the packaging.

If you want to deny the supernatural, don't read these books

I have recently read two books that shed considerable doubt on scientific assumptions that the supernatural does not exist. The first is by Kyriacos C. Markides, The Mountain of Silence: A Search for Orthodox Spirituality (2001). The book explores the beliefs and practices of Orthodox monasterial life as practiced by monks and hermits. In particular, he follows a remarkable larger-than-life priest named Maximos to the island of Cyprus and reports on his actions, his views, and his spiritual practice. Most important for this post, he reports on numerous phenomena that can only be called miracles.

I read this book in a reading group. One of our members knows the author and vouches for his integrity. After reading the book, I became convinced that scientific materialism could not possibly explain the events reported, and I very much doubt that the events were concocted, were dreams, or were otherwise fictitious. That said, I think the theology embraced by these monks, though sometimes qualified, too often seems to subtly denigrate those who care for and act in this world whether it is action for social justice or caring for children. I resist the suggestion that one has to be a monk to lead a fulfilling religious life though there is an impressive spiritual intimacy in monasterial life and, in fairness, the monks would not explicitly denigrate those who choose a life engaged in the world. I am reacting to a tone and a usually unspoken attitude.

Another book explicitly challenging scientific materialism currently sits atop the New York Times non-fiction bestseller list: Proof of Heaven: A Neurosurgeon’s Journey into the Afterlife (2012) by Eben Alexander. Although the book is somewhat repetitious, the story is riveting. Alexander, an academic neurosurgeon was struck by a sudden illness and was in a coma for seven days. He had previously thought that near death experiences felt real but were fantasies produced by the brain under severe stress.  His case was unique because the experience he had during his coma in his view could not have been produced by the brain because the part of the brain that produces thought and emotion was not functioning during his coma. His recovery from the illness was unprecedented. But his near death experience was even more impressive. Alexander richly details what he experienced and he has since learned that his experience is similar to those who also have had near death experiences. His experience has led him to the conviction that heaven and God are real. Proof of Heaven is a powerful book that will strengthen the faith of believers and might give second thoughts to those who think belief in the supernatural is simply nonsense.

What Was Mary Thinking?

The Catholic Bishops will not endorse the theology embedded in Colm Toibin’s novel, The Testament of Mary. Nor will any Protestant bodies. Indeed, religious conservatives such as Mark Shea (see here) are particularly defensive about the book’s depiction of a decidedly non-traditional Mary. He derides the book as “Catholic-hating detritus,” a “viciously dishonest little screed,” “a torrent of invective against the gospel through his Marian sock puppet,” that does for Mary what Dan Brown did for Jesus.

The comparison with Dan Brown is inapt in many respects. Most significantly, Toibin is an outstanding writer, twice shortlisted for the Man Booker prize, not the kind of writer who produces one-damn-thing-right-after-another page turners, however inventive.

I would think that anyone less defensive than a Christian conservative would recognize that the book’s heretical views make for a better novel: surprising, independent, unpredictable, and fresh.

Most important as Susan Stabile argues in an excellent review of the book (see here), “I like the encouragement to try to go beyond the little we have in scripture about many figures – including Mary – to try to understand what they must have been feeling. The book is a reminder that the figures about whose lives we read only snatches in the Gospels were real people with real – and complex – emotions.”  That is exactly right. A preoccupation with heresy misses the invitation to think about the humanity of Mary and the provocation to think about how she experienced the life of her son, especially the crucifixion.

Indeed, I would argue that reading The Testament of Mary is a form of prayer. It is not possible to read the book without wondering what Mary was really thinking. When Jesus was 12 and Jesus told her he was to be in his Father’s house, she did not understand. How did she understand the crucifixion? As a mother, did she come to think it was worth it?

There is a wonderful prayer site, sacredspace.ie (run by the Irish Jesuits but useful for Catholics and Protestants alike) which in addition to encouraging meditation and dialogue with Jesus, and commenting on gospel passages, promotes the kind of reflections of time, place, and emotions that inhabit Toibin’s book. It is ordinarily not easy for many of us to do. Insofar as Mary is concerned, Toibin’s book makes it impossible not to think about the life experience of Mary during a time period in which she is given Biblical short shrift.

 

Protestant Communitarianism and Catholic Individualism

The common understanding is that Catholics emphasize community and Protestants emphasize the individual. From the Catholic perspective human beings are social animals rooted in a community that begins with the family. Catholic support for the poor is rooted in the recognition that we are all made in the image of God, are all part of the human family, and that the option for the poor is a part of what it means to be a Christian. On the other hand, the common understanding is that Protestants emphasize the individual. One common path from that is a strong endorsement of the capitalistic system (where traditional Catholic doctrine emphasizes the perils of unregulated capitalism) though quite different conclusions follow from Protestant individualism for evangelicals and mainline Protestants (though there are differences within those groupings. The former tend to limit support of the poor, for example, to the “worthy” poor; the latter tend to be closer to the traditional Catholic view in this respect though not in many others including women, sexual teachings, and the like.

The communitarian/individualistic emphasis seems to be turned upside down on Sundays. The communitarian Catholics turn into individualists at Sunday Mass. It is possible for a visitor to walk into a Sunday Mass (of course, there are exceptions) and be spoken to by no one except a person assigned to hand out a program (of course, contact is made with others when the exchange of the Peace of Christ is made during the service, but the Vatican advises parishioners to stay close to their places). In stark contrast in the overwhelming majority of Protestant churches, it is not possible to walk into them as a visitor without being greeted by many. It is sometimes overwhelming. It is hard to go into such churches and simply pray at the outset of a service. The passing of the Peace in many of these churches is an occasion for greeting most of those present.

I imagine a Protestant walking into many Catholic churches feels unwelcome. A Catholic walking into a Protestant church feels barraged. But there is more. I do not mean to criticize Catholics or Protestants here (I aim to describe general patterns). I believe that the reason Catholics are not as social when they gather for Mass is that there is a sense of the sacred in church, and a sense that the right thing to do is to quietly pray. There is surely no intention to make visitors feel unwelcome. Similarly, Protestants are not trying to make visitors feel uncomfortable. Quite to the contrary, they are simply making clear that visitors are welcome. I wonder, however, what impact this difference in the ritual has on the communitarian sense of Protestant congregations and without arguing against a sense of the sacred, I wonder whether the sense of the sacred works against community bonding in Catholic congregations. 

Reflections on the Meaning of Christmas and the Real War Against It

Rabbi Michael Lerner writes that Christmas and Chanukah share a spiritual message: that it is possible to bring light and hope in a world of darkness, oppression and despair. With regard to Christmas in particular, he says: “Christianity took the hope of the ancients and transformed it into a hope for the transformation of a world of oppression. The birth of a newborn, always a signal of hope for the family in which it was born, was transformed into the birth of the messiah who would come to challenge existing systems of economic and political oppression, and bring a new era of peace on earth, social justice and love. Symbolizing that in the baby Jesus was a beautiful way to celebrate and reaffirm hope in the social darkness that has been imposed on the world by the Roman empire, and all its successors right up through the contemporary dominance of a globalized rule of corporate and media forces that have permeated every corner of the planet with their ethos of selfishness and materialism.”

Fox News and their ideological compatriots denounce what they describe as a War on Christmas. But John Brueggemann, writing in Lerner’s Tikkun (see here), is not moved by the crocodile tears of Fox News. Nonetheless, he is concerned about the real war on Christmas: “There is a war under way. But it is not about whether a Christmas tree can be mounted here or there. It is about whether the market will define the sacred. Advent invites Christians to do exactly the opposite of what the Christmas shopping season urges: slow down, get ready for something out of the ordinary, look to the most important promises of God and neighbor, and ponder what gifts we have to offer. For Christians, Jews, Muslims and other people of faith seeking a different sense of time and a different future for the world, we share a common cause in facing this threat together.”

I went to a solstice celebration the other night. Rabbi Lerner makes sense of that celebration, “Radical hope is also the message of Christmas. Like Chanukah, it is rooted in the ancient tradition of a winter solstice celebration to affirm humanity's belief that the days, now grown shortest around December 23rd, will grow long again as the sun returns to heat the earth and nourish the plants.  Just as Jews light holiday lights at this time of year, so do Christians transform the dark into a holiday of lights, with beautiful Christmas trees adorned with candles or electric lights, and lights on the outside and inside of their homes.”

It seems to me that Christmas is best understood not as a day of enforced holiday cheer or a day to focus on how we might or might not enjoy our material gifts, but a day of thanks for our lives, a day to recall that we are obligated not to treat the gift of our lives as pointless, and a day to reflect upon how we might bring more light to the lives of others.

 

Free Speech Brief in the New Mexico Supreme Court

On Monday on behalf of Mike Dorf and myself, I filed an Amici Curiae brief in the New Mexico Supreme Court and a motion describing our interest and why we believed the motion would assist the Court. The case involves a photography business (co-owned by a conservative Christian couple) that refused to photograph a same-sex commitment ceremony on religious and public policy grounds. Elane Photography, L.L.C. v. Willock. New Mexico law prohibits discrimination on the basis of sexual orientation. The company argues that it has not violated the law and that, if it has, the law’s application to it violates free speech and freedom of religion rights.  Elane Photography lost before the New Mexico Human Rights Commission and in the New Mexico Court of Appeals. Our brief speaks exclusively to the free speech issue. It argues that free speech is not violated in this context and that even stronger arguments support Willock’s position than were employed by the Court below.  

If you are interested in the motion and brief, you can go to the links below. Comments welcome. https://docs.google.com/file/d/0B6O8TDV2v54hSzZqUnU0ekVSS1U/edit (motion) https://docs.google.com/open?id=0B6O8TDV2v54hdzNtZmlDajJ3Q2s (Brief)

Don't Touch the Charitable Deduction

One of the worst ideas circulating in Washington is the suggestion that the charitable deduction should be slashed or eliminated in order to reduce the deficit. The Wall Street Journal featured a debate in yesterday’s pages on the subject. Daniel J. Mitchell of the Cato Institute argued that the deduction should be eliminated because “there is no evidence that the tax break leads people to increase their giving.” In response, Diana Aviv, the President of Independent Sector, made a number of salient points. In particular, she cited a 2010 Indiana survey in which 2/3 of respondents said they would give less if they did not receive a donation. Indeed, she cited some experts who have estimated that if the deduction were eliminated, giving would decline by $78 billion from the $218 billion given last year.

No doubt, people give for many reasons. But it defies credulity to suppose that our altruism is not assisted by the recognition that there is a tax benefit. Moreover, surely the desire to beat the tax deadline plays a role in the dramatic increase in giving at the end of the year.

Mitchell argues that charitable giving ordinarily stands near 2% of GDP regardless of the incentive. If true, I do not know how to explain it. But I think charities do too much to help people at home and abroad to justify the risk of placing them in jeopardy by playing around with the tax code. This is particularly true of those charities helping the poor. Indeed, to my mind it is shameful that Republicans would even think of playing this game. They typically have opposed government action on the ground that private charities are more efficient. Now many of them are willing to take a river boat gamble on the future of charities even those that provide food, clothing, housing, and medical care to the poor. 

Reflections of an Ex-Catholic on the Church, Gender Equality, and the Poor

One of the things I miss about being a Catholic is no longer being in solidarity with those liberal or rebel Catholics who openly dissent from the self-serving claims of hierarchical authority and the conservative teachings those claims are designed to enforce. I admire their ability to work and to criticize from within.

In the end, I found the constant battle against the hierarchy to be spiritually unproductive, and I found the claims of the Church to be the one true Church to be unpersuasive. Two recent controversies within the Church reinforce the wisdom (for me) of exiting the Church. One involves the question whether women can be deacons in the Catholic Church. I leave aside the falsification of the historical record by conservative leaders in this debate. From the inside, liberal Catholics have to take this debate seriously. From the outside, it looks to me as a fight over scraps at the table. Gender equality is a long way off.

I once remember a priest I respected telling me that it is not enough to reject a Church teaching merely because it is promulgated by a bunch of old men. Probably not. But it’s a start.

Even more troubling was the failure of the U.S. Bishops to produce an economic letter. The initial draft was a train wreck. See http://www.commonwealmagazine.org/blog/?p=21856 Particularly disturbing was this report from David Gibson: “Yet in a sign of the growing generational and ideological split among the bishops, some of the younger and more conservative bishops wanted to kill the statement because they believe the hierarchy should largely restrict their statements to matters of faith. They also view traditional Catholic social teaching with suspicion, and say the church should emphasize private charity rather than government action to cure social ills.” This, of course, is an abandonment of Catholic Social teaching stretching back through many Popes with its rich understanding of dignity is a communitarian context. For an excellent brief statement, see http://americamagazine.org/node/149370

The Pope has been quite careful to select Bishops who toe the line on reactionary teachings such as contraception. But one could at least respect Catholic “conservative” Bishops in the past because of their interesting independence from standard political classifications. Conservative on gender equality and overly rigid about sexual issues, but strong advocates for the poor and vulnerable (not just the unborn), strong enough to condemn the Ryan budget.  Gibson’s report augurs an even more conservative Church and the abandonment of a strong voice for the poor in our national dialogue. If I were inside the Church, I would feel betrayed and angry. Outside the Church, I find it an occasion for sadness.

 

The Norquist Puzzle

Many Republicans are doing cartwheels to explain why they have abandoned the Norquist tax pledge. But I don’t quite understand why. If a bill to extend the Bush tax cuts for people who earn under $250,000, I would think a signer of the pledge would be obligated to vote for the extension. Similarly, if a bill to extend the Bush tax cuts for those who earn over $250,000, I would think, a signatory to the Norquist pledge would be obligated to vote for it (though it would have no chance of passage. What the pledge by its terms would seem not to permit is holding the majority of the country hostage to the rich. The pledge by its terms makes no such distinction.

Tamara Piety on Corporate Power

I recently finished Tamara Piety's splendid book on corporate commercial advertising and corporate political speech (Brandishing the First Amendment: Commercial Expression in America). It expertly describes the shift from a doctrine designed to assist consumers to make rational decisions in the market to a right of corporations to exploit consumers through the use of the best psychological techniques money can buy. It draws on sociological, psychological, and economic literature in making the case. She shows that this brandishing of the First Amendment by corporations threatens health, safety, the stability of financial markets, the envoronment, and our democracy. It is ironic that an amendment that should function to protect democracy is called in the service of undermining democratic values. 

I regret to say that the book is priced at $70.00, a price too steep for many. At least, however, you should encourage your library to purchase the book and check it out if they already have. It is a book for everyone: accessibly written with spunk, passion, imagination, and tough-minded analysis.

What Did Race Have to Do with the Presidential Election?

Two statistics from the exit polls struck me as surprising. 55% of white women voted for Romney (see here) and 52% of college-educated white women voted for Romney. See (here). My first reaction was that race had a lot to do with this, but the story is not that simple.

After all, Obama carried 52% of college-educated white women in 2008, and that percentage was along with that of Gore the highest percentage gained by a Democrat in five years of Presidential elections. See here.

With respect to white women generally, they have been more receptive to Democrats than white men, but as the National Journal explains “also more unsettled in their preferences. Only Clinton in 1996 carried a plurality of white women, although he ran about even with them in 1992, as did Gore in 2000. (Obama captured 46 percent of white women; only Clinton in 1996 and Gore in 2000 won more over this period.) The Republican share among white women has oscillated from Reagan’s 62 percent in 1984 to a low of 41 percent in the Perot-influenced 1992 race.” See here. So Obama’s performance is not out of line with those of white Presidential candidates although one could argue that his reception would have been even better given the circumstances of his election, but for his race.

The argument that Obama has been hurt by race also does not easily fit the data with respect to white men. As the National Journal in August of this year reported, “In the past eight elections, the Democratic nominee has averaged just 36.1 percent of the vote among white men; every Democratic nominee over that period has lost white men by double digits except for Clinton in 1992 (when the Perot effect was strongest). The modest 41 percent that Obama won among white men [in 2008] was actually the Democrats’ highest share since 1980.” See here. Again if Obama was hurt by race in 2008[because he might have done even better, but for his race], it is not obvious from the data. To be sure Obama was trounced in the white vote in this election, but it is hard to pin this on his race unless racism increased between 2008 and 2012.

Of course, part of the appeal of the Republican Party has been about race for many years from Willie Horton and welfare queens to the claim that Colin Powell supported Barack Obama out of racial pride and the race tinged opposition to affirmative action (without suggesting that all those who oppose affirmative action do so out of racist motivation, it is hard to believe that racism plays no role in many of those who oppose it), nor is it easy to ignore the racial animus displayed on immigration issues, or the chatter that real Americans (read white Americans) voted for Mitt Romney or the obvious implication that when Republicans realize that they need to cozy up to Latinos,  they are talking about the other. There is a real sense in a powerful segment of the Republican Party that they are losing their white Christian country, a sense that makes them fearful and angry.

Whatever the racist appeal of the Republican Party and however much the shifting demographics make that appeal less attractive in national elections, the data seems to suggest that Barack Obama's loss of the white vote in the 2008 and 2012 elections was was not measurably hurt by his own race.  

The Triumph of Ecumenical Protestants

In his Presidential address to the Organization of American Historians and a subsequent interview in the Christian Century (see here), David Hollinger argued that ecumenical Protestants (as opposed to evangelical Protestants) made significant cultural gains at the expense of losing membership: “The ecumenical leaders achieved much more than they and their successors give them credit for. They led millions of American Protestants in directions demanded by the changing circumstances of the times and by their own theological tradition. These ecumenical leaders took a series of risks, asking their constituency to follow them in antiracist, anti-imperialist, feminist and multicultural directions that were understandably resisted by large segments of the white public, especially in the Protestant-intensive southern states.”

Hollinger argues that ecumenical Protestants might not have suffered losses as substantial had they not tried to blur denominational lines, leaving people in the pews to think their theological views were not being taken seriously. According to Hollinger, the fear of then united Catholicism led Protestant leaders to try for a united Protestantism, and this backfired.

But he suggests that ecumenical Protestants should not be caught up in the media focus on numbers in assessing success: “The victors are slow to claim victory because they too often assume that numbers of church members are what counts most. If they had a more capacious understanding of the ways in which religion can function in society, they might be able to feel more pride in what happened. The great Anglican archbishop William Temple used to say that any church aware of its deepest missions would be willing to cease to exist if it advanced its ultimate goals.”

I think Hollinger makes an important point in pointing to an unappreciated factor in the numbers decline in mainline Protestant denominations, but there are, of course, many other factors including the fact that the birthrates of mainline Protestants are less than those of evangelicals. Moreover, I think he is correct to suggest that it is better for religious institutions to stand for truth than to curry favor. Important as the cultural achievements which he credits to ecumenical Protestants may be, even if the religious mission of ecumenical Protestants were confined to social justice, I am sure Hollinger would agree that there is a long way to go.

Finally, it is ironic that the membership issues are not confined to ecumenical Protestants. The decline in Anglo Catholics is indistinguishable from a percentage perspective from mainline Protestants. Ecumenical Protestants are now experiencing a decline. Our country, which was founded as an English Protestant country, is now a minority Protestant multicultural nation. The longing for spirituality is increasing, while the belief in religious organizations under siege. Thus it is time to read Diana Butler Bass’s Christianity After Religion: The End of Church and the Birth of a New Spiritual Awakening. Nonetheless, millions of Americans continue to fill the pews even ecumenical Protestant churches. They continue to be influential institutions in the religious lives of their members and the cultural and political life of our nation – and (to borrow a line from Stanley Fish), it’s a good thing too.

Did Colin Powell endorse President Obama Because He is Black?

Former New Hampshire Governor John Sununu suggested this is the case. See here. He said: “Frankly, when you take a look at Colin Powell, you have to wonder whether that’s an endorsement based on issues or whether he’s got a slightly different reason for preferring President Obama.” When asked what that slightly different reason might be, he said Powell was proud that someone of his own race was President of the United States. 

This leads me to wonder whether John Sununu supports Mitt Romney because he is white. 

National Parks, Assault Rifles, and Abortion

Neesa and I are in the Grand Canyon National Park. Given the Republican's views of government and the market, I wonder if there would be such a park if the Republicans had their way or would developers run rampant creating another tragedy of the commons. In hearing the debate, I noticed that Romney does not think the government should take AK47's out of the hands of potential mass killers. I wonder if he thinks every citizen should have the right to carry such weapons in our national parks. Wouldn't that make us feel safe?

Of course, the Romney-Ryan duo believe that government can do something right, namely prevent women from having abortions except in the case of rape, incest, or the life of the mother is at stake. Abortions to protect the health of the mother would apparently be wrong in ways not present in the other three cases. I am mainly out of touch on this trip, but I know that Biden has veen criticised by at least one Bishop for his position on abortion and told he would not be welcome to take the Eucharist in some diocese somewhere. Given that Ryan's position departs from the Bishops' teachings, I have been waiting  for some Bishop or Bishops to lay a similar whammy on Ryan. He was criticized by  the Bishops for abandoning social justice in his budget. If he has not been criticized by the Bishops for his position on abortion, I wonder if it could have something to so with the fact that he is now on the Bishops' favorite Presidential ticket.

Should Government Promote Moral Values?

Cathleen Kaveny, a distinguished professor of theology and law at Notre Dame and a regular contributor to Commonweal, says yes (though there are limits) in a book that is hot off the press. The book, Law's Virtues, should be a special treat. Her writing is always smart, imaginative, lively, and independent.

The book is available here at Georgetown University Press (at the same price offered by Amazon). The site has some powerful endorsements and this summary of the book: "Can the law promote moral values even in pluralistic societies such as the United States? Drawing upon important federal legislation such as the Americans with Disabilities Act, legal scholar and moral theologian Cathleen Kaveny argues that it can. In conversation with thinkers as diverse as Thomas Aquinas, Pope John Paul II, and Joseph Raz, she argues that the law rightly promotes the values of autonomy and solidarity. At the same time, she cautions that wise lawmakers will not enact mandates that are too far out of step with the lived moral values of the actual community. 

"According to Kaveny, the law is best understood as a moral teacher encouraging people to act virtuously, rather than a police officer requiring them to do so. In Law's Virtues Kaveny expertly applies this theoretical framework to the controversial moral-legal issues of abortion, genetics, and euthanasia. In addition, she proposes a moral analysis of the act of voting, in dialogue with the election guides issued by the US bishops. Moving beyond the culture wars, this bold and provocative volume proposes a vision of the relationship of law and morality that is realistic without being relativistic and optimistic without being utopian."

The Culture of Lying

A central premise of the First Amendment is that our nation has a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Proceeding from that commitment, the Court ruled in 1964 that a public official could not recover in a defamation case without showing that the defendant had published a defamatory falsehood either knowing that it was false or in reckless disregard of the truth.

Opponents of this ruling have argued that it shows insufficient respect for the value of reputation and that it could discourage people from running for public office. I have long believed that we should encourage dissent against those in positions of authority and that persons are not discouraged from running for office on the ground that they might not win a defamation law suit if they are defamed.

On the other hand, I do think that persons might be discouraged from running for public office for fear of being defamed, regardless of the defamation rules, in ways that are far more problematic than was the case in 1964. I refer to what I think of as the culture of lying. Despite the Court’s chamber music about truth emerging in the marketplace of ideas, in more sober moments, the Court has said that the truth rarely catches up with a lie. Perhaps it is just my imagination, and, of course, there has never been a golden age, but I cannot recall a time in which lies have been so constant, so tolerated, and so effective in the political sphere. Clearly the legal structure is doing little to preclude the blizzard of malicious falsehoods.  I doubt there is a legal solution. But the case for our “profound national commitment” is not as strong today as it was in 1964.

Should American Catholics Receive Communion?

Placing particular emphasis on the gay marriage issue, John J. Myers, the Archbishop of Newark, New Jersey, maintained in a pastoral letter here that Catholics who cannot assent to the Church’s teachings on marriage and the family “must in all honesty and humility refrain from receiving Holy Communion until they can do so with integrity.” Many reacted to the letter as if it were unprecedented, but I do not believe it is.

The U.S. Conference of Catholic Bishops in 2006 here insisted that “If a Catholic in his or her personal or professional life were knowingly and obstinately to reject the defined doctrines of the Church, or knowingly and obstinately to repudiate her definitive teaching on moral issues, however, he or she would seriously diminish his or her communion with the Church. Reception of Holy Communion in such a situation would not accord with the nature of the Eucharistic celebration, so that he or she should refrain.” In context, as I read it, a Catholic is obstinately rejecting doctrines of the Church if he or she has given up trying to believe that the Church’s moral teaching is correct. What distinguishes the letter of Myers from the statement of the Bishops is that Myers identifies the failure to assent to a specific moral teaching as bringing about separation from the Church. If Myers is right about this, it seems to me that the overwhelming majority of American Catholics should not be receiving Communion. To reject the Church’s teaching on contraception is to reject the teaching authority of the Church, and the overwhelming majority of American Catholics do exactly that. My guess is that relatively few of American Catholics who reject the contraception teaching are still trying to accept Church teaching on the issue.

It is not surprising that the Conference of Bishops is more circumspect about what causes separation from the Church than Archbishop Myers. Nonetheless, the same day the Bishops stated that the failure to accept the teaching of the Church on moral issues should cause one to refrain from receiving Communion, the Bishops in separate documents reaffirmed their teachings on contraception and same sex relations. There is already a crisis in the teaching authority of the Bishops. If they follow the lead of Archbishop Myers in being specific about which moral teachings cannot be rejected while continuing to receive communion, Catholics will either leave the Church or contumaciously receive Communion anyway. In other words, the Emperor will lose whatever clothes are left.

Free Speech for People v. Move To Amend

Last week I argued here that the best way to react to Citizens United was to enact a constitutional amendment assuring that business corporations have no free speech rights, and dismissing any position claiming that regulating the speech of business corporations interferes with the rights of their potential listeners. On this analysis, if a business corporation engages in free press activity, it would be protected. If a non-profit corporation engaged in free speech activities, it would ordinarily be protected under the First Amendment except to the extent that it accepted financing from business corporations.

Two of the most significant grassroots organizations responding to Citizens United, Move to Amend and Free Speech for People, take a different approach. As a preliminary matter, both organizations agree, as do I, that the Supreme Court in Buckley v. Valeo wrongly interpreted the First Amendment to protect wealthy individuals spending unlimited sums to influence the outcome of election campaigns so long as the content of their ads did not specifically advocate the election or defeat of a candidate. Move to Amend would include a Buckley reversal in the same amendment as a Citizens United reversal; Free Speech for People supports separate amendments.

That aside, Move to Amend would deny any rights to corporations of any kind except that it would preserve freedom of press. Free Speech for People would also deny any rights to corporations of any kind, but would specify that nothing contained in its amendment “shall be construed to limit the people’s right to freedom of speech, freedom of press, free exercise of religion, and such other rights of the people, which are inalienable. “

It seems to me that the Move to Amend proposal goes too far. Surely it would be a mistake to deny free exercise of religion to religious corporations and even if it were not, any such position would make the amendment a political impossibility. Less serious, but quite difficult to defend would be the denial of right to counsel to corporations, the right to a fair trial, the right to be protected against unreasonable searches and seizures, and the right not to have property taken without just compensation. From a political perspective, I do not see how it helps to include the divestment of these rights in reaction to a decision which undermined our democracy. People do not like Citizens United. Do they have similar views on these other issues?

Free Speech for People is less vulnerable to these criticisms. Unlike Move to Amend, its proposal specifically states that it is not intended to interfere with rights of the people. (By mentioning press rights, Move to Amend might be read not to include religious rights). I do not see, however, how it helps Free Speech for People to claim that rights are inalienable. Many constitutional rights can be waived in certain circumstances including First Amendment rights. Perhaps the idea is that those rights cannot be waived or taken away altogether though I think of voting as a right and that right can be taken away altogether in some circumstances. I leave that aside because I doubt that rights would be restricted because of the term’s inclusion.

Free Speech for People argues that natural persons can invoke their religious rights or free speech rights or fourth amendment rights. If natural persons were left alone to invoke their rights, freedom would be restricted because natural persons might not want to incur the financial and personal costs of litigation. But Free Speech for People (and perhaps Move to Amend would also – which would greatly strengthen their position) argues that corporations can assert the rights of others if they meet legal standing requirements. So, the NAACP had standing to assert the rights of its members in preventing disclosure of their names. If standing rules are capacious, the rights of natural persons (think of priests, journalists, professors, workers in incorporated unions , etc.) would be unaffected by the amendment.

I wonder though about the rights of religious corporations to raise objections to some Establishment Clause violations. The Establishment Clause appears to be a structural amendment, not easily characterized as protecting the rights of specific natural persons except in associational cases. I also wonder about corporate ability to challenge state and local violations of the commerce clause. I do not think such violations involve the rights of natural persons. Perhaps the argument is that the amendment has no effect on the latter cases because they did not involve corporate rights in the first place.

What about protections like the right to counsel? I assume corporations can raise the rights of their shareholders. If corporations have standing to raise the rights of their shareholders or their employees, why would they not have the right to raise the rights of their potential listeners and claim that their potential listeners have a right to hear their commercial and political speech?

Of course, it would be perverse in light of the Citizens United impetus for passing the Free Speech for People Amendment to interpret it to protect corporate free speech on behalf of listeners. Cynical as I may be, I would not expect courts to so interpret the amendment in such a way, but I do worry about the limitations that might be placed on corporate standing to protect other rights.

Having said all this, I do think the Free Speech for People Amendment is worth supporting. Even if it were interpreted to deny corporate protections against takings or right to counsel, I do not believe any level of government would actually deny such rights to corporations. Although I think the amendment raises many unnecessary issues, it, together with a Buckley reversal amendment, may be our best hope to revitalize our democracy.

 

 

Two Cheers for Current Efforts to Reform Citizens United

Citizens United famously maintained that corporations could spend unlimited amounts of money to influence the outcome of election campaigns. 82% of the American people rightly reject this decision. Grassroots organizations like Free Speech for People and Move to Amend are pressing for the adoption of different variations of a constitutional amendment recognizing that human beings, not corporations deserve constitutional rights.

I oppose the Citizens United opinion; I believe that artificial corporations are institutionalized collections of contracts, not human beings, and I believe that the constitutional amendments proposed by these organizations are worth supporting, but I do not believe that these amendments are the best response to Citizens United.

In my view, the best response to Citizens United is to amend the Constitution to assure that business corporations have no free speech rights, nor should the Constitution respect any claim that regulating the speech of business corporations interferes with the rights of their potential listeners. I do not believe, however, that it follows from the fact that corporations are not human beings that corporations should have no rights. Yes, the artificial character of corporations means, for example, that they should have no rights against self-incrimination. But it strikes me as obvious that even business corporations should have a right to counsel.

Business corporations should have no free speech rights, but business corporations should have free press rights. So if the New York Times Company editorializes in favor of a candidate in its newspaper, the editorial should be protected under the press clause, but, if it or any other business corporation buys time in another newspaper or media outlet to influence the outcome of an election or to advertise a non-media product, the speech should not be protected.

Similarly, a proper response to the broad sweep of the Citizens United opinion should not punish non-profit corporations for the “sins” of business corporations. Business corporations enter the market and election campaigns not as citizens, but as institutions in pursuit of profit. When business corporations advertise cigarettes, they do so without regard to the health of their potential customers; when they promote candidates, they do so exclusively because they think it will help their bottom line using money acquired without regard to the corporation’s ideology. Contrast a business corporation with a non-profit corporation like Wisconsin Right to Life or Move On (if it were organized in a corporate form). Organizations such as these spend money not for profit, but as an association of citizens. They are markedly different from business corporations and deserve free speech protection. Of course, this opens a potential loophole. What if a business corporation gives money to a non-profit corporation that then spends money on advertisements? The legal answer has been that if a non-profit accepts money from a business corporation, it becomes a business corporation for purposes of election law.

There is an irony to this line of analysis. In my view, Citizens United should have won its case, but not for the reasons the Supreme Court brazenly reached out to give. Citizens United produced a documentary about Hilary Clinton. It was odious, but worthy of constitutional protection as an exercise of the free press right. Citizens United advertised its documentary. Such advertisements have long been considered part of the press function. The record of campaign finance abuses has referred to the corruption arising from the blizzard of political advertisements for and behalf of candidates, not to documentaries or advertisements on behalf of them.

Whatever the outcome of Citizens United the opinion stands for a corpocracy instead of a democracy. Nonetheless, I think it an overreaction to strip all corporations of all rights. In fairness, neither Move to Amend nor Free Speech for People quite does this, but I think their proposals go too far in this direction and are not ideal. In my next post, I will explain why I think that, but I will also explain why their proposals are worthy of support.

Steve Shiffrin

 

 

 

 

The Religious Left and the Democratic Party

There was a lot of God talk at the Democratic convention and it is hard not to notice the difference between the social gospel religion of the Democratic Party and the evangelical thrust of the Republican Party. I think the Democrats are right to avoid identity with liberal Catholicism as such (this gives to much of an opening for the conservative hierarchy to speak out), but this op ed in the New York Times is well worth reading. See here.

Are Republicans Hypocrites?

Last Tuesday, Mike Dorf argued (here) against the claim put forward by Paul Krugman (here) and many others that the Republicans deliberately undermined Obama’s efforts to salvage the economy in order to help their own reelection chances. Dorf contends that some Republicans might fall into this category, but most of them actually believed (albeit wrongly) that their actions were in the public interest. Dorf argues that it is entirely conceivable that Republicans think that Keynesian stimuli are not part of a long term solution and that Hayek has a better perspective on what is best for the economy overall. Dorf’s best argument is that many in Europe believe that austerity programs are the best way to react to economic distress and they are not motivated by anti-Obama politics, nor is there much evidence to believe they are not sincere in embracing their wrong-headed views.

In support of Dorf’s view, it is a lot easier to believe that putting money in the hands of the wealthy as opposed to the poor or middle class creates more jobs or that hiring more police, firefighters, and teachers is not in the public interest if your political future demands that you act as if these beliefs are true. The salient political fact is this: if the Republicans had not exercised power in the Congress, well over a million more Americans would be employed today.

Why haven’t the Democrats made more of this? Krugman says it would sound like whining. I believe that one of the weaknesses of the very strong Democratic convention was that it did not emphasize enough the importance of bringing as much Democratic strength to the Congress as possible.

9/11

Susan Stabile has posted a touching reflection on 9/11 at Creo en Dios.

Hiding Constitutional Rights

As I listened to one of the speakers at the Republican National Convention state that Republicans stand for the Constitution, I immediately thought of the Court's undermining of Fourth and Fifth Amendment rights. There are many horror tales, but still one of the worst is contained in  Schneckloth v. Bustamonte (1973). There the Court ruled that police did not have to tell a citizen that he or she had a right not to be searched before securing consent to a search. Astonishingly, the Court said that if officers had to tell a citizen of the right to refuse consent, serious doubt would be created "whether consent searches could continue to be conducted." In other words, if citizens knew their rights to refuse consent, they would do so. Better to hide this right from the citizens,  let law enforcement conduct searches that were really the product of coercion, and then pretend that they were voluntary all along.

According to the Kamisar casebook, students often wonder why suspects carrying drugs readily consent to searches. There are many possible answers: (1) The suspect did not know of a right to refuse; (2) The story that the suspect consented is invented; (3) The suspect is a moron. I would not guess that criminal suspects as a group are the brightest group in the population, but I would think that explanations 1 and 2 overwhelmingly outnumber explanation 3, and the Court knows it.  So what we have is a police state substituting for the Fourth Amendment and a Court that is supposed to enforce the Fourth Amendment deciding that it would be too costly if citizens knew their rights.

Meanwhile, I am told by Tracey Maclin that New Jersey requires police to obtain written permission before launching consent searches.  Somehow, against all odds, the Garden State is still standing.

Romney's Blunders Assembled in a Single Article

Here is a terrific assembly of comments (from the awkward to the moronic) from Mitt Romney many of them sidesplitting. Be sure to scroll down to number 1. The link to Salon appears on Martha Fineman's Facebook page.

Republicans, Big Government, and Hypocracy

Republicans are opposed to big government except: they favor virtually unrestrained power of police officers (some would call this a police state); they believe that the US is perfectly suited to police the world, to promote religion, and to regulate the morals of the people including the most intimate details of their private lives.

Government can do all this, but it is ill-suited to build bridges and roads, and the jobs of police, fire-fighters, and public school teachers should be cut. Curious, eh?

It Takes a Village to Raise a Mass Murderer

Do violent video games play a role in the development of some mass killers? Speculation along these lines is common. Lance Liebl observes: “When violent tragedies like the Aurora, CO shooting that resulted in the death of 12 people happen, media — and often people who know nothing about video games — try to somehow tie in video games as the cause of the tragedy. We saw it with the Columbine shooting and the Virginia Tech shooting. So does it come as any surprise that Fox News is trying to report that the suspect, James Holmes, played World of Warcraft?” Liebl maintains that: “World of Warcraft is no more a contributing factor to James Holmes mental state and reason that he shot people than him once eating a Hot Pocket that burned his tongue. Or him watching the horrible programming on Fox News... which is probably a lot more responsible for any national tragedy.” See here.

Liebl might well be right. Not all correlation is causation. And most people who play violent video games do not become killers. Nonetheless, the American Academy of Pediatrics, the American Academy of Child & Adolescent Psychiatry, the American Psychological Association, the American Medical Association, the American Academy of Family Physicians, and the American Psychiatric Association were not speaking purely out of their imagination in issuing statements deploring the developmental effects of violent video games on children. And the American Psychological Association and the American Academy of Pediatrics in separate statements have expressed that some of the effects on aggression are unique to interactive violent video games as opposed to the depiction of violence in other media. Consider, for example, the game of Manhunt in which: the “player sneaks around a 3-D environment and commits heinous acts of murder as a sadistic form of entertainment. Decapitation, steel-object-to-the-brain impaling and even the ability to jam a sickle up and unsuspecting victim’s ass” is part of the Manhunt experience. Another popular game called Postal calls on players to “burn people alive with gasoline or napalm; decapitate people with shovels and have dogs fetch their severed heads; beat police to death while they beg for mercy; kill bald unshaven men wearing pink dresses (in an ‘expansion pack’ called Fog Hunter); slaughter nude female zombies; urinate on people to make them vomit; and shoot players with a shotgun that has been silenced by ramming it into a cat’s anus.”

I am not surprised that in Columbine, Virginia Tech, and apparently Aurora, the killers were participants in, if not addicted to violent video games. We will never know if they were merely attracted to the games or if the games played a role in pushing them over the edge from fantasy to reality. Liedl is speaking purely out of his imagination when he claims to know. I do not believe that the most gruesome of these games are age appropriate for anyone. But it is obvious to me that the self-regulation of the industry is not working, that many of these games are not appropriate for young children, and that these games are so far removed from the core of the First Amendment that to say corporations have a right to sell these games to young children transforms a great principle into a piece of stubborn stupidity. Indeed, that is exactly what the Supreme Court did in Brown v. Entertainment Merchants Association.

It takes a village to raise a child. By permitting the sale of particularly gruesome violent video games to children, we have not only abdicated our responsibility to build a culture promoting positive social development, we have elevated that abdication into a constitutional principle.

 

 

Legislative Prayer

Missouri votes tomorrow on a ballot resolution that will protect a right to pray in public. The utterly unfocused proposal is animated by a sense that Christians (who constitute 80% of the Missouri population) are victims. The resolution will easily pass and be challenged with tough sledding for many of its applications in court. Even more interesting to my mind is a prayer issue raised in Sussex County Delaware.

The legislature there has been starting its session with the Lord’s Prayer for more than 20 years. U.S. District Court Judge Leonard P. Stark has enjoined the practice on the ground that the practice endorses Christianity. In lieu of appeal, the legislature has offered the compromise of saying Psalm 23: “The Lord is my shepherd, I shall not want . . .”

Obviously, the Lord’s Prayer is an important part of the Christian tradition although its content is not explicitly Christian. Psalm 23 is a part of the Judeo-Christian tradition, and Marsh v. Chambers authorized legislative prayers that fit within that joint tradition. But the country has become significantly more pluralistic since the Chambers decision in 1983 (making the discrimination against Buddhist, Hindus, atheists, and agnostics more socially salient), and I would guess that Jews generally (not to mention many mainline Protestants) would be uncomfortable with legislative prayer of any kind. That could suggest the decision is vulnerable to attack. On the other hand, the Court has become far more conservative since 1983 and even less sensitive to the interests of religious minorities.  

To my mind, this makes the question of what the lawyers should settle for in Sussex County extremely interesting. The judge was insisting on a settlement by mid-July, but that apparently has not happened, and the clock is ticking.

I was interviewed about this a couple of weeks ago. Here’s a link. Shiffrin Discusses Public Prayer in Delaware
WDEL, Jul 13, 2012

 

 

More on the Importance of the Stolen Valor Case

I have already argued that the Stolen Valor case is important because it breaks with the rigid methodology used in recent years by the Court to determine whether speech should be unprotected. See here. The case may be important in three other respects.

The Court sometimes says and some commentators maintain that public speech receives more protection than private speech. Yet in the Stolen Valor case, the reverse is the case, at least for the four justice plurality. The plurality maintains that public utterances falsely claiming the receipt of a medal of honor should be unprotected, but if the same statement is uttered in private, it should be protected. Yet, I would think that the statement uttered in public is less likely to cause damage because its falsity is more likely to be quickly discovered as were the facts in the case before the Court.

More disturbing is an aspect of the dissent. In a previous case, the Court ruled that an ordinance outlawing racist fighting words (a form of unprotected speech) was unconstitutional because it unreasonably outlawed some fighting words without outlawing others. From Justice Scalia's perspective, St. Paul Minnesota had taken a side in the culture wars. RAV v St. Paul. I do not agree with the result in RAV, but I think the equality principle upon which it relies is unassailable. For example, it would be obviously unconstitutional to outlaw fighting words directed against Republicans, but not against Democrats. It seems to me that the opinions in the Stolen Valor case certainly needed to discuss RAV. According to the statute it is not permissible to wrongly claim that you have earned the medal of honor, but it is permissible to falsely say that you once served in the Peace Corps, or as a lawyer in the Justice Department (when you are not even a lawyer) or as a Doctor in the Veterans Administration (when you are not a doctor). Surely this content discrimination required some discussion under RAV.

Finally, the Alito dissent argues that First Amendment interpretation has not depended on originalism. Yet Justice Scalia and Thomas, the apostles of originalism, sign this opinion. Perhaps Justice Scalia could claim that his originalism allows him to bow to precedent (though these bows are selective). I do not see how Justice Thomas could say this. Nor do I understand how Scalia could miss the need to discuss RAV. I am left to speculate that the rally around the military politics implemented in the law blinded Scalia and Thomas to the need to explain why they were not taking one side in the culture wars.

Penn State and the Catholic Church

Some say that the penalties imposed by the NCAA against Penn State were too severe. I say it's a shame that the Catholic Church is not governed by the NCAA.

Ross Douthout on Liberal Christianity: You'd Think the New York Times Could Do Better

On July 14, Ross Douthout wrote a column in the New York Times about “the collapse of liberal Christianity.” In particular, he focused on the Episcopalian Church which he claimed had followed retired Bishop John Shelby Spong in adopting every liberal idea ever promulgated by a liberal theologian. Spong famously denied the existence of miracles in general and the physical Resurrection of Jesus in particular. He denied the existence of a traditional God and the coherence of praying to an imaginary God who cares about what happens in the world. Douthout blames the decline in Episcopalian membership and the decline in liberal Christianity on the acceptance of liberal beliefs. He sees little difference between liberal Christianity and secular liberalism.

There is a lot that is wrong with this picture. First, there is no reason to believe that the leaders of the Episcopal Church are as theologically liberal as Spong. Indeed, Rowan Williams, the Archbishop of Canterbury, has stated that Spong’s core theological beliefs “represent a level of confusion and misinterpretation that I find astonishing” (although Williams’ own views are more nuanced than those typically understood by parishioners). See here. I can find no evidence that the Presiding Bishop of the Episcopal Church, Katharine Jefferts Schori shares Spong’s theology. In reading some of her sermons, it is clear to me that she has a quite different conception of Divine caring and human prayer. See here. I am fortified by a post by Matthew L. Skinner (an Associate Professor of the New Testament at the Luther Seminary in St. Paul) on Taryn Mattice’s Facebook page that says, “Ross Douthat is starting to drive me crazy with his consistent sloppiness as a commentator on the American religious scene. It's easy to make fun of Spong, but to strongly associate him with the recent actions of the Episcopal Church USA is... just stupid.”

Douthout’s suggestion that the decline in liberal Christianity is caused by its liberalism is marred by the triumphalist implication that the Pope of his Roman Catholicism has been wise to steer the conservative course. Douthout does not discuss the staggering exodus of Anglo-Catholics from the Catholic Church. According to Putnam and Campbell in American Grace, the decline of Anglo-Catholics in Roman Catholicism is about the same as that experienced in mainline Protestantism. They say that the second largest religious group in the United States is composed of those who have left the Catholic Church. And consider those who are left behind. The overwhelming majority of Roman Catholics reject the authority of the leadership. The majority of Catholics in the pews reject most of the stubbornly conservative teachings of the Pope and the Bishops. They stay in the Church despite these teachings, not because of them. Perhaps it is just me, but I think the crisis of authority within the Catholic Church is far more serious than the turmoil in the Episcopalian Church.

Diana Butler Bass maintains (see here thanks to Taryn for the link) that what is really going on is a loss of faith in all forms of traditional religion. I think the real story is quite complicated. Some leave churches because they are too liberal or too conservative; some leave because there has been change regardless of left/right tilt; some leave because of institutional stodginess, corruption, or beaurocracy.  And many stay. The sociology of religion defies simplicity and does not lend itself to the partisan posturing of Roth Douthout.

Most galling to me of all the Douthout claims is the assertion that the Episcopal Church (and liberal Christianity) offers little not afforded by secular liberalism. I wonder if anyone could walk into a Episcopal Church on a Sunday morning and mistake it for a secular gathering. Does Douthout really think that the sacramental life of a church is a meaningless charade? In this connection, consider Rowan Williams in response to Spong again, "I have never quite managed to see how we can make sense of the sacramental life of the Church without a theology of the risen body; and I have never managed to see how to put together such a theology without belief in the empty tomb. If a corpse clearly marked ‘Jesus of Nazareth’ turned up, I should save myself a lot of trouble and become a Quaker."

Does Douthout think that the faith experience and commitments of a congregational community are secular? Yes, there are secular aspects. But Douthout’s glib dismissal in comparing liberal Christianity and secular liberalism is journalistic malpractice.

Why the Citizens United Decision was Bad for Conservatives

From the perspective of conservatives, Citizens United was an unnecessary decision. The Court had already held that corporations could spend unlimited amounts on political advertising with the intent and the effect of electing candidates of their choice, so long as they did not specifically use the magic words advocating the election or defeat of an candidate. Short of that, all-out attack ads regarding a candidate were fully protected by the Roberts Court. Permitting the use of the magic words added little of substance.

But the decision unleashed a political whirlwind against the role of business corporations in politics, and deep concerns about the integrity of the democratic process and the Court itself. Those concerns about the Court came home to roost in the most significant case of this term.

It is now widely perceived that the Chief Justice was forced to abandon the conservatives in order to uphold the core of the Affordable Health Care Act. He did that so that the reputation of the Court was not further tarnished. But if he had not lead the Court to the unnecessary opinion in Citizens United, he would have had more freedom to maneuver.

Now that he has upheld the Affordable Health Care Act, he is free for some time to enact his ideological agenda. Alas, this is not good news for the Voting Rights Act or affirmative action this coming term.    

The Stolen Valor Case, the Frozen Mold, and First Amendment Idolatry

Many people are concerned that the Stolen Valor case has converted the First Amendment into a right to lie. Others are happy that the Court resisted the temptation to allow the government to send people off to jail for words that have caused no harm or to assume that the government is a better arbitrator of truth than the marketplace. Lost in the discussion is the Court’s important retreat from First Amendment idolatry.

Prior to the Stolen Valor case, the Court had settled into a frozen mold of determining whether a category of speech was unprotected by the First Amendment. In order to determine that a category of speech was unprotected, either the category of speech had to be historically unprotected (obscenity, defamation, fraud, perjury etc) or the government had to meet a “strict scrutiny” test, namely it had to show that outlawing the speech was necessary to achieve a compelling state interest. And the strict scrutiny test was almost impossible to satisfy.  Because the strict scrutiny test is almost impossible to satisfy, the frozen mold approach reates a form of First Amendment idolatry. It assumes that speech is always so important that it invariably outweighs whatever interests the government might have on the other side. By putting a thumb on the scales in favor of speech, the Court shortchanges other important values such as human dignity, privacy, the fair administration of justice, and public health.

Four justices on the Court led by Justice Kennedy stuck with the frozen mold of First Amendment idolatry. They said: there is no long history of outlawing false autobiographical statements of military honors; although falsely making such claims is indefensible, prohibiting such representations is not necessary to achieve a compelling governmental interest. That was not a difficult argument to make. But there was an embarrassing hurdle. Other significant statutes outlaw the making of false statements. In particular, 18 U.S.C. §1001 forbids the making of material false statements to government agents whether or not the misrepresentation misleads. The statute is a major tool in the arsenal of federal law enforcement. For example, Martha Stewart and thousands of others have gone to jail or forced to plea because of the statute. There is no way the Court will declare the statute unconstitutional and the plurality made clear that it was not questioning 18 U.S.C. §1001. But it is hard to see how those justices could uphold that statute using the frozen mold. It meets neither the long history test, nor the strict scrutiny test. It richly demonstrates the need for more sensitive interpretive tools than the frozen mold.

Fortunately, Justices Breyer, joined by Justice Kagan, appreciate the bankruptcy of the frozen mold. They argue that these cases should be approached by considering all the factors relevant to the case without using a test that dictates a free speech outcome from the beginning. Those justices would apply “middle level scrutiny,” and they are right to do so. I have been contending since 1978 that speech comes into conflict with too many important values in too many diverse contexts to hope or expect that speech should always prevail or that a single theory would guide us to satisfying results. If the Stolen Valor case marks the death of the frozen mold, it is a day for celebration.

By the way, I think that the Stolen Valor statute was rightly declared unconstitutional; I have doubts about 18 U.S.C. §1001, and there is much to appreciate in the dissenters’ opinion though in the end, I disagree with it. I will come back to all this early next week.  

 

 

Chief Justice Roberts and the Affordable Health Care Act

Prior to the announcement of today's monumental health care decision, the betting was that the key vote would be Kennedy and that if Kennedy swung toward upholding the act, Roberts would join him. We now know that Roberts was the key vote, and we should have suspected it from the beginning.

Roberts more than any other member of the Court has a stake in how the Court is perceived. The media and historians focus on the legacy of the Roberts Court. If the Court had struck down the Affordable Health Care Act, there was a grave danger to the Court that it would be perceived as a partisan wing of the Republican Party. The decision would have been perceived as woven from the same cloth as Bush v. Gore and Citizens United. Instead, the Supreme Court will be perceived in this decision as having acted as a court of law rather than as a naked political power organ.

Of course, law is a subcategory of politics. But it is a subcategory bound by certain authorities, customs, habits, and traditions. Policy plays a role, but partisan politics is out of bounds. Roberts understood that. It is a courageous decision on his part. He will be hated by conservatives for what he has done. And he will never be loved by liberals, nor should he be.  But I respect the fact that he ruled today in a way that will promote respect for the Court as an institution.