ReligiousLeftLaw.com

The Catholic Church is Finished?

[from The Atlantic, July/August 2010:]

The Catholic Church is Finished

By Ross Douthat

This was the year when the cover-up of priestly sex abuse, a long-simmering crisis for Catholicism, became something much, much bigger. It was Watergate. It was Waterloo. It was another Reformation. The pope had to apologize. No, the pope had to resign. No, the pope had to be arrested. The Church could be saved only if every bishop stepped down. No, the Church could be saved only if a Third Vatican Council was convened. No, the Church could be saved only if it became as liberal as the Episcopal Church, and quickly. No, nothing could save the Church: it was too corrupt, too compromised, too medieval, too anachronistic. And now, at last, it was finished.

A little historical perspective suggests otherwise. The Church has been horrifyingly corrupt in previous eras and still survived. It’s been led by ecclesiastics who make Bernard Law’s hands look clean, and still survived. It’s faced fiercer enemies than Richard Dawkins (think Nero, or Attila, or Voltaire) and still survived. Time after time, G. K. Chesterton wrote, “the Faith has to all appearance gone to the dogs.” Each time, “it was the dog that died.”

But if the Church isn’t finished, period, it can still be finished for certain people, in certain contexts, in certain times. And so it is in this case: for millions in Europe and America, Catholicism is probably permanently associated with sexual scandal, rather than the gospel of Jesus Christ. And as in many previous dark chapters in the Church’s history, the leaders entrusted with that gospel have nobody to blame but themselves.

The Insignificance of the Christian Legal Society Case

I may be blind, but I do not see the law declared in the Christian Legal Society case as a serious blow to freedom of religion or freedom of speech. The Court affirmed an “all-comers” policy in the case. In order to secure subsidies from the Hastings Law School, any organization had to be open to all students. If it was not open to all students, Hastings agreed to provide access to law school facilities for meetings and access to adequate means to publicize its meetings. 

The Court did not hold that law schools have a right to discriminate against religious organizations (the question before the Court was not what Hastings had done in the past, but the all-comers policy then before the Court). The Court did not rule that Hastings could prohibit selective membership; it ruled that Hastings need not subsidize organizations with selective membership. And the Court ruled that an all-comers policy should not be approved if it were a pretext to discriminate against the Christian Legal Society. The Court remanded to determine whether the policy was pretextual if the issue was still procedurally open to the plaintiffs.

Justice Alito disagreed with the Court on its understanding of the record and Alito decided many factual issues for the first time in the Supreme Court, issues that had not been reached by the lower courts including whether the Society really had access to facilities for meetings.

But the legal differences between Justice Ginsburg, author of the majority opinion, and Justice Alito were thin. They did disagree whether an “all-comers” policy was reasonable. Justice Ginsburg argued it was reasonable because an all-comers policy ensured that students were afforded leadership, educational, and social opportunities, that Hastings students are not forced through their student fees to fund a group that would reject them as members, that it helped Hastings enforce its anti-discrimination policy (and state anti-discrimination laws) without the necessity of determining the basis for membership restrictions, and, by bringing together people of diverse backgrounds, that it encouraged toleration, cooperation, and learning. Any claim that hostile students would take over an organization was contrary to the experience of the school and unduly speculative. The reasonableness of the policy was also indicated by its measured character. The school offered access to school facilities to conduct meetings and the use of chalkboards and some bulletin boards, and it could take advantage of electronic media and social networking sites.

I personally would not support an all-comers policy (and I think Justice Alito has a good rejoinder on the reasonableness issue though I do not recall a response to the student fees argument). I also worry that an all-comers policy could conceal discriminatory interests (though the fact that it applies to all organizations undercuts that worry). But I do not think the policy is constitutionally unreasonable. So long as groups with selective membership policies have access to school facilities to conduct meetings and the means to communicate about them, and that is the legal assumption of Justice Ginsburg’s opinion, I do not think this case is very significant.  

Corporations and Progressive Change

There are good reasons to be pessimistic about the possibilities for progressive change. Corporations play a dominant role in American politics and they inevitably press not for the common good (except by accident), but for short-term competitive gains. Efforts to rein in corporations are constitutionally cabined, and there are limits in any event to what a legislature will do to make it easy to challenge incumbents.

Two aspects of political economy qualify this pessimism without overturning it. First, corporations are not monolithic. Many of the great battles on Capital Hill involve conflicting interest between corporate competitors in various industries. This is certainly has been the case in the battle for health reform, in financial reform, and in environmental regulation. This increases the likelihood that some moneyed voices in Washington will be advocating for the common good. (On this corporate competition, see Robert Reich, Everyday Corruption, American Prospect 25 (July/August, 2010).

Second, the shift from a manufacturing to a knowledge economy has produced some very rich Americans who lean to the left and have helped to bankroll the Democratic Party. For example, Obama raised 8.5 billion dollars from the Internet and computer industries. The movement of the economy seems to favor the Democrats. See generally David Callahan, Traitors to Their Class, The New Republic 13 (July 8, 2010).

I remain pessimistic, but I do not despair. 

"War Readings for Sunday, June 27"

Here.

Oil and the Pursuit of Profit

What do you think of this resolution passed in response to the oil spill? "God has designed us with a dependence on the natural resources around us and has assigned us a dominion of stewardship and protection of those resources for future generations. . . .  Our God-given dominion over the creation is not unlimited, as though we were gods and not creatures, so therefore, all persons and all industries are then accountable to higher standards than to profit alone. . . . The resolution called on the government "to act determinatively and with undeterred resolve to end this crisis; to fortify our coastal defenses; to ensure full corporate accountability for damages, clean-up and restoration; to ensure that government and private industry are not again caught without planning for such possibilities; and to promote future energy policies based on prudence, conservation, accountability, and safety."

So said the 2010 Baptist Convention. See the Washington Post. Oh, if an alliance were only possible against the forces of profit and environmental degradation.  

"Material Support" for a "Foreign Terrorist Organization"

At PrawfsBlawg, Rick Hill asks, “Is it a federal crime to break Israel’s Gaza blockade?” It’s a nice discussion of the consequences of the recent Holder v. Humanitarian Law Project decision and raises the ongoing issue of unconstrained prosecutorial discretion as well:

“We law profs ought to be publicizing this egregious mutilation of traditional criminal law categories and not hyper-ventilate about some free-speech bogeyman borne of the ‘cultural magnetism’ exercised by the First Amendment (in Fred Schauer's memorable phrase) on the American imagination, a magnetism that leads us Americans to press the First Amendment's boundaries outwards while ignoring the real threat to our liberties that have nothing much to do with speech.” [emphasis added]

The “free speech” concerns Rick derisively dismisses are discussed here and here.

Addendum: See too the commentary by Diane Marie Amann, David Cole, Stephen Vladeck and others in The New York Times.

Burquas in Spain

Spain is considering a ban on burquas in government buildings, maintaining that the clothing is demeaning to women. As I understand it, Islamic women decide to wear burquas as part of a commitment to modesty. It is hard to see why this would be “demeaning” to women. Even if it were demeaning, it is almost as hard to see why government would be warranted to intervene in these clothing choices, let alone why government would combat such demeaning clothing only in government buildings.  Perhaps the idea is that men force women to wear this clothing. Apart from the fantastic empirical assumptions (men think the clothing appropriate, but women do not), relieving women from involuntary choices only in government buildings has little to recommend it. In fact, the claim of protecting women is insulting.

The point of this proposed legislation is to assault human dignity, not to protect it. It is Spain’s attempt to show that it too can stigmatize minorities.

An Altar in the World

I am reading a wonderful book by Barbara Brown Taylor, An Altar in the World: A Geography of Faith. America magazine describes it as a “delight to the eyes, mind and heart.” The title refers to the presence of God in our living world in many natural altars, not merely within church buildings. In a chapter on The Practice of Wearing Skin, she discusses the need for reverence of the body. She observes that the central claim of the incarnation is that “God trusted flesh and blood to bring divine love to earth.”
When Taylor hears about the decline of organized religion, she hears many things, but she thinks the intellectualization of faith is more important than inept clergy, bad faith, and “preoccupation with intellectual maintenance.” She wisely remarks: “In an age of information overload, when a vast variety of media delivers news faster than most of us can digest - - when many of us have at least two e-mail addresses, two telephone numbers, and one fax number – the last thing any of us needs is more information about God. We need the practice of incarnation, by which God saves the lives of those whose intellectual assent has turned as dry as dust, who have run frightenly low on the bread of life, who are dying to know more God in their bodies. Not more about God. More God."

The Secular

At the Immanent Frame, Vincent Pecora discusses a project on religion and modernity that will be pursued there. In his essay, he has a critical summary of Habermas’s views on religion, rationality, and modernity. He notes that the concept of the secular cannot be exhausted by the invisibility of religion and that it leaves out too much when it is viewed through the lens of Christianity. In my view, his questioning of the sagacity of the Habermasian conception of progress is on the mark. His essay is worth reading and the project seems well conceived. It should produce some very interesting work.

Our Addiction to Foreign Oil

Jim Wallis in Sojourners wrote yesterday about the oil spill. He agrees with the President that: “For decades, we have known the days of cheap and easily accessible oil were numbered. . . .  For decades, we’ve talked and talked about the need to end America’s century-long addiction to fossil fuels. And for decades we have failed to act with a sense of urgency that this challenge requires. Time and again the path forward has been blocked, not only by oil industry lobbyists, but also by a lack of political courage and candor. The consequences of our inaction are now in plain sight.”

Wallis observes that the last eight Presidents have called for an end and promised to end our dependence on foreign oil. He recognizes that our addiction to foreign oil produces a foreign policy “based on dependence on corrupt oil regimes, on sending our sons and daughters off to fight and die for their crude product, [and] on both fueling and paying for the violent terrorism that is eventually used against us.”

He says we should undertake a mission to end that dependence, and we should. When one looks at the changes that would have to be made to accomplish getting past our addiction, however, I find little grounds for optimism. When hundreds of billions of dollars of advertising press us to be a materialistic, hedonistic society and when campaign finance laws give soulless corporations enormous political power, it is hard for me to imagine how the political will and the willingness to sacrifice can be generated to cure our addiction. I suspect that a cure for our addiction will eventually be forced upon us, and it will not be pretty.

Opposition to the Death Penalty in Utah

"We oppose capital punishment not just for what it does to those guilty of horrible crimes, but for how it affects society," says Bishop John C. Wester, of the Catholic Diocese of Salt Lake City, a founding member of the group.

Read about it, here.

Christian Legal Society

On February 5 on Mirror of Justice, Tom Berg described the soon-to-be-decided Christian Legal Society case in this way: “Christian Legal Society v. Martinez, now before the Supreme Court, is a very important case about freedom of association, free exercise of religion, and the definition of viewpoint neutrality.  It concerns whether a CLS chapter can be excluded from a limited public forum for student organizations at a public university because it asks leaders and voting members to affirm a statement of faith and refrain from extramarital sexual conduct. “ http://mirrorofjustice.blogs.com/mirrorofjustice/2010/02/christian-legal-society-briefs-in-the-supreme-court.html

I think this description leaves out an important aspect of the case. The parties stipulated in the Court of Appeals that the Hastings policy was the following: the only organizations that could receive monetary subsidies and other benefits were those organizations open to all students in terms of being officers or members.  This policy is viewpoint neutral – it is not aimed at content of any kind. And more controversial, it is reasonable within the meaning of public forum doctrine even if it is not wise (and, just as an aside, I do not think it is wise).

If Hastings is to grant subsidies to organizations in a deliberately diverse student body, it can confine subsidies to those that are open to all students. This is not a prohibition of discrimination or a direct denial of freedom of association; it is a denial of a subsidy; The Boy Scouts case does not apply. To me, the interesting question is to determine what the baseline is for deciding what a subsidy is in these cases. I think it clear that a group not meeting the all comers policy should have no right to receive funds. On the other hand, it should have access to classrooms as a matter of right. (Hastings, I think is granting this as a matter of sufferance).  Similarly, it should have an ability to communicate through an effective means(e.g., e-mail) the existence of its meetings and events. But should it have access to school bulletin boards? I think more attention to the line between prohibition and subsidy is needed.

Want to Live a Better Life?

Here are tips from Pope John XXIII and from Buddhist teacher Ken McLeod.

Colonialism and the Anglican Community

Daniel Burke, writing in the Christian Century reports on a June 2 letter by Presiding Episcopal Bishop Katharine Jefferts Schori to Episcopalians defending the Church’s position on gays and lesbians and resisting Anglican efforts to centralize authority: “’Unitary control does not characterize Anglicanism; rather, diversity in fellowship and communion does,’ Jefferts Schori contended. Imposing uniformity on the 77 million Anglicans scattered across the globe runs the risk of repeating the ‘spiritual violence’ and ‘cultural excesses’ of colonial missionaries who built the communion on the back of the British Empire, the presiding bishop added.” Burke adds commentary by Diana Butler Bass: “She's saying, 'This is our tradition and you're violating it.' She is accusing Williams of being an imperialist. Scholars will look back on these letters in 150 years and say, 'This is it. This is when it all went away,' Butler Bass said. ‘The Anglican Communion is not going to make it.’”

Some Anglicans wonder what the message of its church might be in a post-colonial age. If I understand the work of Bass, it is that local churches should imitate and further Christian lives of spirituality and social justice as they interpret them in our times. She believes that the richest history of Christianity is not in the standard story of early church to Constantine to middle ages to inquisition to reformation to puritans etc., but in the lives of powerless and powerful people through the ages trying to live lives of faith and social justice.

Martin Marty: "Chosen People"

Sightings 6/14/10

Chosen People

-- Martin E. Marty

The grand theological themes don’t fade or disappear from headlines or prime time.  “Being chosen,” as in the case of biblical or modern Israel, is the grand theological theme today.  My clippings and blog-printout file bulges with records of renewed debates over what it means to be a “chosen people,” and whether Israel today should make use of the concept.  Perhaps the most widely-known recent controversy was inspired by Michael Chabon’s “Chosen, but Not Special” op-ed in The New York Times (June 6).  Identified only as author of The Yiddish Policemen’s Union, Chabon spends no time on the biblical concept.  His theme is the Yiddish word “seichel,” which, he says, means “ingenuity, creativity, subtlety, nuance.”  Seichel has helped Jews as a people to survive, but Chabon thinks it has been lacking in recent highly-publicized actions by Israel.

No self-hating Jew, Chabon does say that “we Jews” are not always comfortable living with the consequences of the myth of “seichel.”  Now to the point:  This is “the foundational ambiguity of Judaism and Jewish identity:  the idea of chosenness, of exceptionalism, of the treasure that is a curse, the blessing that is a burden…To be chosen has been, all too often in our history, to be culled.”  Chabon does not mention it, but I recall a grimly humorous or humorously grim prayer by a rabbi who thanks God for having chosen Israel but then, reflecting on “the burden” that goes with this, asks God next time to choose some other people.

Plenty of other people have seen themselves as chosen.  Most theologically nuanced was Abraham Lincoln’s word for Americans:  “an almost chosen people.”  Of course, there are no biblical roots for calling citizens of the United States a “chosen people,” nor were there for the English, from whom Americans, including many of our founders, inherited the myth.  Such myths, like Lincoln’s word about the United States being “the last, best hope of earth,” can be empowering and ennobling, but they can also issue in arrogance, imperial swaggering and destruction.

Back to Israel’s issue:  We non-Jews do not have to settle the debates internal to Judaism and Israel on this subject.  But non-Jews such as the almost-chosen Americans do have much at stake.  The Jewish paper Forward on May 21 published John C. Hagee’s “Why Christian Zionists Really Support Israel.”  Evangelist Hagee was a counselor to Presidential candidate John McCain’s team for five minutes during the 2008 campaign, until the team leaders caught on to the consequences of any Hageean embrace.  Hagee assures Israel that it can count on Christian Zionists, no matter what it does:  “Our support for Israel starts with God’s promises in the Hebrew Bible,” which many of this school of thought translate to the idea that the United States must help assure that Israel will own all the land within some boundaries mentioned in “the Hebrew Bible.”

Non-Jews will not understand Jews who have a sense of history unless they understand how central “the Land” is in their thought.  But they can chafe – as many of us confess to have done years ago – when chided for not believing that Israel’s chosenness had to be an article of Christian belief today, and that non-belief was anti-Semitism.  Chabon repeated the many reasons for identifying with Israel that are political, moral, strategic and empathic.  But such identifying does not need to become creedal, as it does in the world of Christian Zionists and their more moderate allies.  “Get over it” is part of Chabon’s message, and then “get on with it” implies more pragmatic consequences.

References:

Read Chabon’s piece here: 

http://www.nytimes.com/2010/06/06/opinion/06chabon.html?scp=1&sq=chosen,%20but%20not%20special&st=cse

 Read Hagee’s piece here:  http://www.forward.com/articles/127965/

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

The Soul of Environmentalism

Paul Halpert in the current issue of Tikkun magazine writes of the struggle within the environmental movement between the naturalists who would urge us to harmonize with nature and those who would seek to master nature. The naturalists have tended to be the dominant force of the environmental movement, but it is losing ground: “Environmentalism is changing, however, especially in light of the climate crisis. Many are now toning down or outright abandoning a naturalist sensibility for one leaning toward mastery. We see this in the attraction to technological fixes as evident in the resurgence of support for nuclear power, the popularity of carbon sequestration, and the embrace of ‘green’ consumption. . . . Many environmentalists have come reluctantly to recognize that there is simply no way that societies are going to cut back, restrict their imprint on the earth, and otherwise live lightly on the planet enough to mitigate climate change. . . . . Put differently, many environmentalists are now admitting that global capitalism, incessant technological innovation, endless consumption, and pervasive anthropocentrism are here to stay. Rather than continue to battle against these dynamics in the service of living more harmoniously with the natural world, many argue that it is time to embrace them and align ourselves with their power.” 

When commercial advertising plays as important a role in the culture as it does in ours, it is hard to see how the forces of naturalism stand a chance. But Halpert warns: “[W]hile we may be unique as a species, we are not exempt from nature's laws and imperatives, and we live less than full lives when we forget this. This recognition, paired with the realization that there is more to the cosmos than humans, provides the antidote to the hubris of the mastery narrative—and to our collective ability to address climate change.” 

Power in the Anglican Community and Elsewhere

Diana Butler Bass has an interesting post on the internal politics of the Anglican/Episcopal church. She reports on an exchange between Rowan Williams, the Archbishop of Canterbury and  Katherine Jefferts Schori, the Presiding Bishop of the Episcopal Church.  Much has been written about the differences within the worldwide Anglican community regarding LGBT issues. Williams recently wrote a Pentecostal letter stating that he would remove representatives from national churches including Canda and the USA that violated certain guidelines including those about gays etc.  Schori responded.

Bass sees this dispute between two liberal theologians not as a dispute about gays, but a dispute about power within the church: “Rowan Williams' letter articulates ‘top-down Anglicanism,’ a version of the faith that is hierarchical, bishop-centered, concerned with organizational control, and authoritarian. It is an old vision that vests the identity of the church in a chain of authority in the hands of ecclesiastical guardians who agree on ‘a coherent Anglican identity’ and then enforce the boundaries of that identity through legal means. This version of Anglicanism stretches back through the Middle Ages and relates to similar forms of Christianity as found in Roman Catholicism and some forms of Eastern Orthodoxy.

“Katharine Jefferts Schori's letter speaks for ‘bottom-up Anglicanism,’ a version of the faith that is democratic, parish-based, mission-oriented, somewhat rambunctious, and (even) revolutionary. It is also an old vision, one that vests the identity of the church in local communities of Anglicans at prayer, who adapt their way of life and liturgy according to the needs of Christian mission. This version of Anglicanism is rooted in both the ancient Celtic traditions of English Christianity and the missionary work of St. Augustine of Canterbury circa 600. “

At its best, Bass maintains that the Anglican Church has negotiated these tensions in innovative ways, producing the “middle way.” As Bass observes, when the middle does not hold, as it does not now within the Anglican Church, the inability to address religious pluralism is laid bare. And this problem is not simply an Anglican problem. It runs through religious traditions. Happily, from my perspective and hers, the hierarchical solution is on the defensive: “For what it is worth,” she says, “the river of history does not seem to be on the side of hierarchical church control; rather, history seems to be moving in a the direction of what Thomas Friedman might call ‘flat church.’ The tides are pulling most ecclesiastical boats toward bottom-up versions of faith. Hierarchical church control is, as Harvey Cox argues in his book The Future of Faith, a ‘rearguard attempt to stem a more sweeping tidal change’ toward a new experiential, inclusive, and liberationist view of God and faith.”

As Bass portrays it, Williams is steering the Titanic and may go down with the ship. She prefers the “American Episcopal river raft. Better for navigating strong currents.”

Bass has a book entitled A People’s History of Christianity: The Other Side of the Story. I’ve been meaning to order it. Now is as good a time as any.

 

 

Claremont School of Theology to Offer Multi-Faith Clerical Training Curriculum

“In a bow to the growing diversity of America's religious landscape, the Claremont School of Theology, a Christian institution with long ties to the Methodist Church, will add clerical training for Muslims and Jews to its curriculum this fall, to become, in a sense, the first truly multi-faith American seminary.
   The transition, which is being formally announced Wednesday, upends centuries of tradition in which seminaries have hewn not just to single faiths but often to single denominations within those faiths. Eventually, Claremont hopes to add clerical programs for Buddhists and Hindus.” […]

 

The rest of the article is here. A companion piece is here.

 

This development brought to mind the following from my former teacher and dearest friend, Nandini Iyer:

“To affirm that there can be several different systems all giving us, at the same time, varying and yet legitimate ‘true’ metaphysical descriptions of the world does not…necessarily entail that there are many realities, that nothing is absolutely real, or, put less dramatically, that there is no such thing as a single, context neutral description or account of the world, that is, as the world really is. It only means that no metaphysical description of it can be outside every possible conceptual framework, but Reality itself is. Nor does it follow that any assertions about this ‘real’ or ‘true’ world beyond all conceptual frameworks, are nonsense. [....] The conceptual frameworks we build in the realm of rational thought are not useless just because they cannot describe Ultimate Reality. Serious examination of, reflection on, these explanatory and interpretive schemes, their differences and overlaps, are crucial to expanding and deepening our understanding of reality, even if these conceptual frameworks (any or all possible combinations and collections of them) cannot bring us the Absolute Truth. If nothing else, they enable us to understand the relativity of conceptual truths and structures, and make us see what Pascal meant when he said that the highest function of reason is to show us the limitations of reason.”

It seems we’re drawing nearer “on the ground” to exemplifying the metaphysical implications of the Jain notions of nayāvada (the epistemological doctrine of relativity or perspectives) and syādvāda. (the epistemic doctrine of conditional predication or qualified assertions), as well as the spirit of the Jain ontological doctrine, anekāntavāda, or the doctrine of many-sidedness (of reality).*

Image: Ceiling inside the large Jain temple at Rankpur, Rajastan, India.

*Addendum:

Incidentally and interestingly, Mohandas (‘Mahatma’) K. Gandhi’s philosophy of nonviolence (ahimsā) had more in common with Jain and Buddhist traditions (‘heterodox’ from the perspective of the āstika (orthodox) sad-darśanas) than with Hinduism proper (although nonviolence is a prominent dharma in the latter and is the first and most important of the abstentions (yama) in Patañjali’s Yoga system). His spiritual mentor was in fact “the saintly Jain jeweler,” Raichandbhai (as Bhikhu Parekh has noted, ‘the only man who came close to being his guru’), one of the few individuals Gandhi had known “who closely approached being a mukta, or liberated soul.” And “Gandhi’s conception of tolerance and amity” was strongly influenced by his acceptance of the aforementioned Jain doctrines.

Those not familiar with the Jain religious tradition might benefit from the following titles (Long’s book is perhaps the most accessible introduction to the three doctrines above):

• Ganeri, Jonardon. Philosophy in Classical India. London: Routledge, 2001.
• Long, Jeffery D. Jainism: An Introduction. London: I.B. Tauris, 2009.
• Matilal, Bimal Krishna. The Central Philosophy of Jainism: Anekāntavāda. Ahmedabad: L.D. Institute of Indology, 1981.
• Matilal, Bimal Krishna (Jonardon Ganeri and Heeraman Tiwari, eds.). The Character of Logic in India. Albany, NY: State University of New York Press, 1998.
• Sharma, Arvind. A Jaina Perspective on the Philosophy of Religion. Delhi: Motilal Banarsidass, 2001.

One contemporary analytic philosopher whose work on “truth” and “pluralism” comes closest to the Jains on this score is Michael Lynch: see, for example, his Truth in Context: An Essay on Pluralism and Objectivity (1998).

No Need for Scarcity

Marvin Ammorini at Balkinization has an excellent post in which he takes off from a speech by Elena Kagan attacking the scarcity doctrine which has been used to justify broadcast regulation. He proceeds to show the undesirable consequences that would follow if government were not able to regulate broadcasting. It is well worth reading.

My own view is that the scarcity doctrine was misconceived from the start, but that broadcast regulation can be justified without resort to the scarcity doctrine. The fact is that broadcasters have no property right to send electromagnetic waves through the airwaves they use. That property right to send those electromagnetic waves is owned by the federal government. And that is why broadcasters are licensed as trustees to serve the public interest. Broadcast speech, therefore, is a form of government subsidized speech. It is not unconstitutional for government to hire teachers to deliver content for children in its schools. And it should not be unconstitutional to tell public trustees that they must provide children's programming for some specified hours per week or to give candidates access to the airwaves. This is not to deny that government can not be limited in the demands it makes of its licensees (just as a public university should be required to afford academic freedom to its subsidized speech). I explain this in greater detail in on article on Government Speech I wrote thirty years ago.

Meanwhile, thanks to Ammorini with his posts on campaign finance and broadcasting, I am liking less and less I see about the First Amendment views of Elena Kagan.

The End of the World

Brian D. McClaren has a new book, A New Kind of Christianity: Ten Questions that are Transforming the Faith. The eighth question about the end of the world and the life to come shows the political consequences of one brand of fundamentalist theology. Those who think the world is coming to an end very soon (and there are tens of millions – Obama being the new anti-Christ on the heels of a succession of others) are prone to indulge in utterly irresponsible politics. As McLaren (who does not subscribe to this form of theology or politics) puts it in the Huffington Post: “If the world is about to end, why care for the environment? Why worry about global climate change or peak oil? Who gives a rip for endangered species or sustainable economies or global poverty if God is planning to incinerate the whole planet soon anyway?”

To my mind, McClaren’s example illustrates the political danger not only of a form of fundamentalist theology, but also of public reason doctrine. It is folly to rule out criticism of comprehensive positions from public discourse. If fundamentalists are to be confronted, their theology needs to be criticized because their bad politics is supported by bad theology.

No Cheers for Hedgehogs

Ronald Dworkin has a book forthcoming later this year, Justice for Hedgehogs, but there is already a symposium in the Boston University Law Review discussing it with a response by Dworkin. I have always been attracted to the main lines of Dworkin’s philosophy of law and repelled by his account of liberalism. Indeed, I got interested in political theory because of how much I disagreed with him. In general, I despise his liberalism because it is designed for hedgehogs. In my view, social reality is too complicated and values conflict in too many contexts to hope or expect that a theory with a few small premises could lead us to good results across a wide variety of cases, but that is exactly Dworkin’s objective. I think the notion that the state should be neutral about the good life to be simplistic. I think that the deductions of hedgehog theory are forced. I think they obscure the tragic choices inevitably made in decisionmaking. I went on a partial rant in this vein at the Colloquium on Philosophy and the Social Sciences in Prague and one of the presenters, Frank Michelman, who has read the book (and written about it in an interesting essay) said, “Steve, you are not going to like this book.” 

I have read many of the essays in the symposium. I particularly like two of them so far (in addition to Frank Michelman’s). Martha Minow and our own Joe Singer have a wonderful essay stressing the existence of tragic choices that are suppressed by Dworkin’s analysis and why the acknowledgement of such choices is more true and humane that that put forward by Dworkin. Robin West also has a very nice essay which opposes the neutrality about the good life idea and argues that the idea of rights as trumps can obscure the tragic choices made.  She also makes the interesting point that with all our theorizing about what legislators must not do; we have undertheorized the question of what they should be morally (and perhaps legally) obligated to do.

These essays and the other essays in the symposium are available here

UCCSB Letter on Discrimination Against Homosexuals

I know I’m a little late to the party on this one.  On May 19, the USCCB wrote a letter setting out its reasons for opposing the proposed Employment Nondiscrimination Act, which would prohibit discrimination against homosexuals in employment.  The crux of its position appears to be that it is opposed to the law because (1) it might be applied to the Church in ways that interfere with its religious autonomy and (2) it might be used by litigants and courts to promote successful constitutional challenges to prohibitions on same-sex marriage.

I don’t know enough about the proposed legislation to comment on the Bishops’ specific claim that the religious exemptions built into the law are insufficient to protect the Church’s autonomy, but there were a number of troubling features of the letter that may shed some light on the hierarchy’s views on homosexuality and the law.  

Discrimination Against Gays and Lesbians

Chip Lupu and Robert Tuttle were recently interviewed in the Pew Forum about the class of cases involving discrimination against gays and lesbians on religious grounds. Suppose a pharmacist refuses to serve someone because he is gay and the pharmacist believes same sex relations are sinful. I think most people on the left would think that the pharmacist should not be able to defend the refusal to serve on religious grounds any more than a pharmacist could refuse to serve some of another race on religious grounds. But see Bob Jones case (many on right believe that race discrimination on religious grounds should be constitutionally protected).

But the cases that are arising are not of this sort. They involve, for example, sex counselors who refuse to counsel persons about same sex relations, ministers who refuse to preside over gay weddings, and photographers who refuse to participate in gay weddings because they (wrongly) believe that same sex relations are sinful. These cases seem different than the first class of cases. In the first class of cases, the pharmacist discriminates against persons. In the second class, the counselors, ministers, and photographers do not want to be involved in (what they perceive to be) sinful activity and that refusal has a discriminatory effect. But it is not discrimination against persons. If one of the participants in the wedding wanted to hire the photographer to take pictures of him playing basketball, there is no reason to think the photographer would refuse to take such pictures on religious grounds.

I believe the left is divided on the second class of cases – even the religious left might be divided. I think the religious claim should lose in the first class of cases and win in the second. But I am not sure why the distinction between persons and refusal to participate in perceived sinful activity should make a difference. After all, the pharmacist in the first example may think that serving gays is sinful activity. To be sure, the government interest in fostering respect for individual and supporting human dignity is more deeply offended in the first line of cases. And a contrary ruling in the first line of cases would open the door for widespread evasion of anti-discrimination laws in a way not threatened by the second. But I believe that a part of the pull to reject the religious claim in the first line of cases is that the theology of the claimant in the first line of cases is more odious than that of the claimants in the second line of cases. That, theoretically, should not be on the table in a free exercise inquiry.

In any event, Lupu and Tuttle conclude their very useful survey of the cases with the conclusion that the legal cases involve the second line and that claimants are likely to lose in the courts. Much as I lack admiration for the theology of the claimants, I hope Lupu and Tuttle’s predictions prove to be off the mark.

Promise(s) and Contract Law

At the Ratio Juris blog I’ve posted a basic, introductory piece on “promise(s) and contract law” that I wrote some time ago. I plan on updating the essay soon in light of recent works by Andrew S. Gold, Dori Kimel, Nathan Oman, Michael G. Pratt, Seana V. Shiffrin (yes, the brilliant daughter of our own Steve Shiffrin), and Stephen A. Smith (among others). I warmly welcome comments from my co-bloggers and any of our readers well-versed in the relevant literature. Thank you.

Best wishes,

Patrick

Repentance

Susan Guthrie, a writer and Episcopal priest has a wonderful column at Christian Century on repentance.  She writes that, "I've noticed an aversion to the language of confession, repentance and reconciliation. Some will seriously argue that this is due to abuses before the Reformation. But I think it's just Sloth: because we know we're forgiven, we don't bother with the process of repentance. And maybe Pride: we're so sure of mercy, we make the leap to thinking we're right all the time. And Greed: we become consumers of mercy without getting any of the benefits of progress.

"These old spiritual practices meant to strengthen our character can help strengthen community. Like any art, spiritual renewal takes practice. As so many wise people say, 'It's easier to act your way into a new way of thinking than to think your way into a new way of acting.'"

Guthrie's column is filled with wise insights about going through the process of repentance. It is worth reading and rereading. The column also got me to thinking about its relationship to Catholicism. Most of the insights are useful to Catholics who avail themselves of the Sacrament of Penance or Reconciliation. But, as the clergy would report, the Sacrament is in "deep crisis." http://www.cathnews.com/article.aspx?aeid=14231. I wonder how much of that crisis stems from anti-clerical premises and how much of it is due to other factors (fear, lack of awareness of sin, etc.).  

Religion and the Justices

Melissa Rogers in the Washington Post suggests a number of questions for Senators to ask Elena Kagan about religion. After suggesting a number of questions about the Religion Clauses (many of which Kagan would be sure not to answer), she suggests that it would not be appropriate to ask the nominee about her religious beliefs because of the prohibition about a religious test for office. If I recall correctly, Sandy Levinson asked me about this issue in the question and answer period after a talk I gave earlier this year, and I (on a day where I was the master of bad answers) took the same position Rogers did. Sandy shook his head in disagreement. If I recall the exchange correctly, I stand by my answer. But it strikes me that I should have said it is perfectly appropriate to ask candidates about their moral beliefs (though not the grounding for those beliefs) and the way those moral beliefs would influence their interpretation of the Constitution.

Rogers downplays the importance of the imminent absence of a Protestant on the Supreme Court. She asks what about Justice Stevens's opinions reflected his Protestant background. I do not have an answer to the question, but I would not be as quick as Rogers to rule out the possibility of its relevance. At the same time, the evidence suggests that Protestant and Catholic, for example, are overly broad categories. That is, the conservative Catholics on the Court have more in common with conservative evangelicals than with liberal Catholics. And, Justice Brennan (and it appears Justice Sotomayor) had more in common with the liberal evangelical Jim Wallis and Rabbi Michael Lerner than with C.J. Roberts and Kennedy, Scalia, Thomas, and Alito, JJ. This, to me, is not evidence that religion fails to influence legal and political views. It is apparent, for example, that Ted Kennedy's liberal views were very much influenced and motivated by his religion. Scalia, J., denies the impact of Catholicism on his views as a justice, but the ferocity of his views on abortion comes from somewhere. On the other hand, he seems to have ferocious views about everything! 

Secular Worldviews, Religious Worldviews, and the Morality of Human Rights

That's the title of a new paper--a draft--that I've posted to SSRN and thought might be of interest to some RLL readers.  The abstract:

"The morality of human rights -- by which I mean the foundational, connected moral claims articulated in the International Bill of Human Rights -- coheres well with some religious worldviews. For example, and as philosopher Charles Taylor has explained, the 'affirmation of universal human rights [that characterizes] modern liberal political culture [represents an] authentic development[] of the gospel . . .' But does the morality of human rights also cohere, well or otherwise, with any secular worldview: any worldview that denies or is agnostic about the existence of a 'transcendent' reality, as distinct from the reality that is the object of natural-scientific inquiry? Put another way: Are secular worldviews and the morality of human rights like oil and water?

This is an essay in human rights theory--a brief essay, given its intended venue; see below. In it, I explicate the morality of human rights and then address the question articulated in the preceding paragraph. Along the way, I reference recent work in human rights theory by religious human-rights theorist Nicholas Wolterstorff ('Justice: Rights and Wrongs') and secular human-rights theorist James Griffin ('On Human Rights').

In this essay--a later version of which will be my contribution to The Routledge Companion to Theism, edited by Charles Taliaferro, Steven Goetz & Victoria S. Harrison--I build on an argument I began in The Idea of Human Rights (Oxford, 1998) and continued, in revised form, in Toward a Theory of Human Rights (Cambridge, 2007).

For a recent essay on the problématique to which my argument is a response -- an essay that discusses my argument -- see Daniel Malachuk, 'Human Rights and a Post-Secular Religion of Humanity,' Journal of Human Rights 9.2 (June 2010). Another recent, quite relevant discussion: John Dobard, 'The Inheritance of Excellence: On the Uses, Justification, and Problem of Human Dignity,' http://ssrn.com/abstract=1580548.

Comments welcome: mjperry@emory.edu."

The paper is downloadable here.

Distributism, Home-Ownership, and Finance

Hello, Friends,

In response to some interesting back-and-forth at the Mirror of Justice blog between Robby George, our own Michael Perry, and others, I have posted the following thoughts, which might be of some interest to RLL readers as well:

Though one might laud our (early 1930s through mid-1990s) American system of mortgage finance from many nominally distinct points of ideological view, I have long been struck by how well this system cohered, until recently, with the Catholic 'distributist' ideals of such as Chesterton and Belloc.  Advocates of distributism, some MoJ readers will likely recall, cast their 'ism' as a sort of 'third way' between perceived capitalist excess on the one hand, and perceived communist excess on the other.  The form of excess shared at those putatively opposite ends of what was actually a de facto circular 'spectrum' (the 'end-points' actually touched), of course, was the tendency for wealth and property distributions to skew over time in favor of oligopolistic or oligarchic elites -- that is, corporate or party elites -- who often came to control the instrumentalities of the state to their own advantage.  The remedy, in the view of the distributists, was for a republic of small holders to employ the instrumentalities of the state to maintain itself and its character over time, essentially by ensuring that property not only remained privately owned, but also -- and quite essentially -- broadly owned.  (The pre-imperial Roman republic did just that for centuries through its law of property.  Bill Simon at Columbia has written wonderfully on this.)

Many Americans are aware that a vision much like that held by the distributists, in this case under the rubrics of 'Jeffersonian' or 'yeoman' republicanism, animated early colonial American reforms to the English common law of property (perhaps most notably the elimination of primogeniture), as well as the Lincolnian Homestead and Land Grant Acts (yes, there were multiple such enactments, clear into the 20th century).  Fewer seem to be aware of the role played by the late Hoover and subsequent Roosevelt administrations in realizing the same broadly distributist ends.  It is the latter two administrations that brought us, respectively, (a) the 1932-vintage Federal Home Loan Bank Board, as well as, in consequence, the savings and loan industry that the Board effectively regulated and enabled to thrive until deregulation during the Reagan years; (b) the 1934-vintage Federal Housing Administration, which invented mortgage default insurance and the 30-year, fixed-rate mortgage, upon which FHA insisted as a condition for extending default insurance, both of which rendered mortgage credit much less expensive; and (c) the 1938-vintage Fannie Mae, which invented and 'made' the secondary market for mortgages by purchasing, with mixed private and publicly supplied capital, now nationally standardized (yep, those 30-year, fixed-rate) mortgage instruments from home loan banks in need of liquity, which rendered loanable funds all the more inexpensively available to home-buyers. 

The upshot?  We moved from being a society in which fewer than 40% of American households owned their own homes circa 1928 (because loan-to-value ratios were typically well below 50%, down payments in consequence had to be huge, and mortgage debt had to be refinanced every two to three years) to one in which nearly 70% did by the late 1970s. 

What went wrong?  Long story, but suffice it to say that the destruction of the deregulated savings and loan industry opened a vacuum into which stepped a new industry of 'mortgage banks,' which were not banks at all and accordingly were not regulated as such, over the course of the 1990s.  This new industry pioneered new mortgage products, which did not meet FHA standards, just in time to exploit a new tidal wave of cheap credit brought to you by (a) a Greenspan-led Fed on a bender, and (b) a cash-flush China and set of OPEC countries looking for places to park their (cheap, toxic) export- and petroleum-bought dollars.  That of course brought us a classic credit-fueled, feedback-sustained asset-price bubble of the sort that makes many individual decisions which, ordinarily, would look irrational, look altogether rational, at least in the short-to-medium term.  (Example: If the house that collateralizes a risky borrower's debt is rising in market value by 50% per annum, and has been doing so for a while, it looks rather less crazy to lend to that borrower than it otherwise would, since at worst you are left holding a rapidly appreciating asset; and if you don't extend the loan, someone else will.)  These bubble conditions, I've argued elsewhere, are in the nature of collective action problems.  Multiple acts of individual rationality aggregate into collectively wasteful, if not calamitous, outcomes.  (Compare: arms races, consumer price hyperinflations, employee-lay-off-fueled recessionary spirals, 'prisoner's dilemmas,' & cet.)  

Collective action problems require collective agents for their solution.  That agent in this case should have been the Fed, whose statutory mandate is, precisely, to control the credit-money supply economy-wide with a view to maintaining price stability -- a form of stability that is of course the very antithesis of price bubbles and bursts.  The Fed's greatest chairmen of the past -- Paul Volcker and, especially, William McChesney Martin -- would likely have been up to the task.  (Martin is he who memorably said that the role of the Fed is to 'take away the punch bowl just as the party is getting good.')  Alan Greenspan, who seems not to have understood the structure of the asset price bubble we went through -- and who said multiple times that private borrowers, private lenders, and secondary market makers like Lehman and Freddie alike would be 'crazy' to 'leave money on the table' by favoring boring FHA-approved 30-year fixed-rate mortgages over ever-refinanceable 'balloon' mortgages -- was not.  Collective action problems also, of course, are such that one need not impute sinister motives or irrationality to any market participants to explain them.  I accordingly think we distract ourselves when we look for demons among the investment banks, the secondary market makers, or at other nodes of our ramified financial-cum-mortgage markets.  Doubtless there were sharp practices and lunacies aplenty -- there always are -- but the point is that they're not the culprits.  Collective agents who do not believe in their own mandates are the closest we have to those.

Readers who would like more on the history of our mortgage finance programs, as well as additional distributist-friendly American social welfare programs, might enjoy a USC Law Rev piece titled A Jeffersonian Republic by Hamiltonian Means, written by an eccentric law professor, available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=926409   

Readers who would like to read more about a set of new distributist-friendly proposals, themselves offered by an eccentric law professor, might enjoy a Cornell Law Rev piece titled What Kinds of Stock Ownership Plans Should There Be? Of ESOPs, Other SOPs, and 'Ownership Societies,' available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931049 

There is also a 'global' rendition of the previous piece in the U. Va. L. & Bus. Rev., titled Insource the Shareholding of Outsourced Employees: A Global Stock Ownership Plan, available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1108226   

Finally, readers who would like to read more on the nature of asset price bubbles and bursts of the sort we have just been through might enjoy a piece called A Fixer-Upper for Finance, a draft of which is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1367278 .  The final version of the piece has just gone to press for the Wash. U. L. Rev.

There are also some interesting posts at Dorf on Law concerned with these matters, e.g. these: http://www.dorfonlaw.org/2009/09/what-maynard-keynes-james-dean-and-now.html ; and http://www.dorfonlaw.org/2010/05/meanings-of-goldman-sachs.html . 

All best and more soon,

Bob