ReligiousLeftLaw.com

Obama, Jobs, and What to Do If the Debt Ceiling Is Maintained

One good thing about the debt ceiling “crisis” is that the Republican Party is in shambles. The business community is now fully aware that it was crazy to help fund tea party candidates. But, the New York Times correctly points out this morning that the Democratic Party is in similar shambles. Legislative Democrats are angry that we are saddled with a President who has not used his leadership ability to get the public behind a jobs program. Instead, he has scolded the members of both parties for not compromising (while he negotiates with himself) and has tried to stand above it all pleading for our government to become functional – playing into the Republicans’ claim that government does not work.

Yes, the job problem started on Bush’s watch and the deficit was substantially increased by his policies, but we should not ignore the extent to which the job problem is attributable to Obama’s failure. As Tikkun emphasizes this morning in an e-mail (and as I have complained about many times myself), Obama appointed conservative economic advisors from the start when he could have appointed the likes of Robert Reich and Paul Krugman.

I doubt the debt ceiling will be maintained, but Rabbi Lerner of Tikkun has an interesting idea if it is: “Instead of being such a wimp, Obama could even now simply announce the following plan for what will happen if the debt limit isn't reached: he will pay the social security, medicare and other benefits to those Congressional districts whose representatives voted to raise the debt limit and not to those which did not. And similarly all other federal services. Military installations in the Congressional districts whose representatives did not vote for the raising of the limit will be immediately shut, and all military personnel outside the U.S., starting with Iraq and Afghanistan, will be ordered to return to the U.S.  They play hardball, so could a progressive Democrat, if we happened to have one in office, which we don't.”

Obama (and Clinton before him) knew that liberals will have to support him rather than let the lunatics claim the Presidency. But I will give my financial contributions to House and Senate Democrats in the next election. If Obama supports the banks rather than the unemployed, he can run with the banks money as far as I am concerned. Does anyone think that Hilary Clinton would have played Ms. Ineffective Nice if she were President? I wish I had voted for her in the primaries.

Perfectionist Liberalism & Social(ist) Democracy

 

Against the idea of force, the force of ideas.—Austro-Marxist aphorism

In dark times, that is, with the evisceration of a public culture suitable for establishing and encouraging the necessary conditions of personal autonomy, it might help to remind ourselves of the following basic premises of “perfectionist liberalism:”

“The life of the autonomous person is distinctive not by what it is, but by how it came to be what it is. It is marked by the fact that it could have been otherwise and became what it is through the choices of that person. It is marked by the fact that the autonomous agent had many options which he rejected. To show that a person had an autonomous life, we have to look not only at him but also his environment. One is autonomous only if one lives in an environment rich with possibilities. Concern with autonomy is concern with the environment.

The environment determines whether one has the conditions of autonomy and it is the conditions of autonomy which are, up to a point, the charge of political institutions. Governments cannot make people have a flourishing autonomous life. That is up to each one to see to himself. But governments can help put people in conditions where they are able to have that kind of life by protecting and promoting the creation of the environment which makes such a life a possibility. Toleration as respect for individual freedom not only is consistent with, it in fact requires concern for and involvement with others. [….]

The availability of options depends in part on private goods…. But options also depend on public goods, which are available to all and serve all. Public goods lie at the foundation of most options. Options are to a considerable degree socially defined. [….] The conditions of autonomy require an environment rich in possibilities. In that they require an appropriate public culture, for it is the public culture which to a considerable degree determines the nature and quality of the opportunities available to a society. But to the extent that the conditions of autonomy require a suitable public culture, they depend on the common good, that is, on a good which if available to one is available to all and whose benefits can be had by all without competition or conflict.”—Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (1994): 121-122. 

Indeed, this is why I stubbornly retain a perhaps inordinate but unashamedly wistful fondness for “Red Vienna.” The Viennese Social Democrats assiduously, and in large measure successfully, cultivated a public culture and common good as necessary conditions for personal autonomy. As Helmut Gruber concludes in Red Vienna: Experiment in Working-Class Culture, 1919-1934 (1991),

“…[D]espite serious practical failings, red Vienna succeeded as no other metropolis had in improvising and innovating social reforms and cultural activities for its working class within the political limits of a polity hostile to such efforts. The SDAP [Austrian Socialist party or Austro-Marxist Party, also known as the Viennese Social Democratic Workers’ Party] cultural preparation for a socialist future in the present was unique. It went beyond traditional social democratic reform legislation in seeking to encompass the Viennese working class through an intricate network of party cultural organizations and activities that had both an educational content and symbolic force. While critical of the conception and execution of this program, one still marvels at the daring vision, for instance, of the public housing palaces as total worker environments containing laundries, bathhouses, kindergartens, libraries, meeting rooms, swimming pools, cooperative stores, youth and mothers’ consultation clinics, and much more. The purpose of these enclaves was to provide the workers with a setting for the ‘political culture’—the Austromarxist special formula leading to the maturation of the working class—through which the consciousness necessary for the creation of the ‘neue Menschen’ could be instilled.”

Death of the Liberal Class

I just finished reading Chris Hedges's pessimistic, but not nihilistic book, Death of the Liberal Class. I think his case is overstated, but well worth reading because I think he is much more right than wrong. In the 1960's the confrontation between the liberals and the radicals included the charge that the liberals had "sold out." Hedges is angry with liberals for selling out across many fronts, for failing to live up to their ideals. I think this is exaggerated, because I believe there are many liberals in universities (with tenure) and politicians (in safe districts) who have not sold out their principles (they were not necessarily heroes, but already secure and not for sale). But the claim that the corporations have won and that they dominate our political system and increasingly our culture rings true to me. I concur that corporations have bought the Democratic party in significant ways (the near abandonment of the poor, the favors to the financial class, the failure to protect the environment adequately). I suspect he is right that it is too late to rescue our environment and even if it is not to late, it is hard to understand how our political system could muster the political will to do something about it before it is too late. Hedges sees a very dark future ahead for our children at the very least. Nonetheless, he calls upon us to rebel in very ways against the system. He believes that such dissent is necessary for us to cling to our humanity whether or not we are effective. There is a community of discourse between political radicals like Hedges and the Anabaptists, the Quakers, and the Catholic Workers (he spends some pages on the latter).

It strikes me that first and foremost we should join the movement to strip business corporations (who are not citizens or people) of free speech rights. A democracy cannot function with their domination. Politicians cannot act in the public interest if their primary attention is to moneyed interests. An amendment to the Constitution is unlikely, but not impossible. Perhaps more probable is a change in the composition of the Court to reverse the Citizens United decision (though a popular amendment would be better). Even with a change in the campaign finance system, corporations will still have immense power because of the globalization phenomenon with capital flights to the most exploitable labor markets.

Hedges has good grounds for pessimism, and good grounds to be angry with the liberal class. I wish he didn't.

More on the Crucifix in Italian Classrooms

My post on the Crucifix elicited a response from Marc DeGirolami. I responded to his response. Both posts appear today at the Mirror of Justice website . See here.

The Crucifix in Italian Classrooms

I recently taught the Italian crucifix case in my class in Paris. The major issues in the European Court of Human Rights were the rights of parents to direct the upbringing of their children and the right of religious liberty. The Court held that there was sufficient division within Europe on these issues, so that it was not a clear violation, or in court-speak, it fell within the "margin of appreciation."

I think it is a very difficult trick to say that forcing a student to study "under the cross" in a state school (the German constitutional denunciation of the practice in Bavaria) is consistent with either of these rights though the decision is not surprising - given the relative lack of power of the European Court compared to the U.S. Supreme Court and the diversity of views in Europe.

Even more difficult, however, was the Italian Administrative Court's conclusion that a crucifix in a state school is consistent with the Italian requirement of secularity. That Court recognized that the crucifix was a religious symbol, but it suggested that the crucifix was a symbol of Christianity in general, not a symbol of Catholicism. Then, in a crucial move, it argued that the crucifix transcended religion. The crucifix, according to the Court, stands for "charity over faith itself" which means that it stands for "tolerance, equality, and liberty  which form the basis of the modern secular State and of the Italian State in particular."

Of course, arguing that the crucifix transcends religion is offensive - not less so when it is likely that the reason for wanting to have the crucifix in the classroom is religious. But the underlying theology is worth comment. The court claims that the crucifix transcends Catholicism. But most Protestants avoid the crucifix in favor of the cross. Even more breathtaking is the assertion by a court no less that the crucifix stands for "charity over faith." We pause as Martin Luther rolls over in his grave.

Finally, the court declares that the crucifix stands for tolerance, equality, and liberty as the basis of a secular state. Suffice it to say that this does not look at the crucifix in the long sweep of history. Indeed, Italy's principal Christian church did not come to value religious liberty until the second Vatican Council and there are some grounds to question its commitment to the secular state.

 The European Convention on Human Rights does not require states to be secular; Italy claims to be a secular state. In my view, the Lautsi case shows that the Italian state is secular in name only and that it has purchased that name at the cost of religious frivolity on the one hand and the draining of religion from the primary symbol of the Christian religion on the other.

Criminal Procedure in a Constitutional Democracy

§ 94. The person charged is entitled to have the assistance of a defence counsel of his own choice at every stage of the case. He shall be so informed. The court may allow the person charged to have his defence conducted by more than one counsel.—From Norway’s Criminal Procedure Act of 1981. 

At The Faculty Lounge, Bridget Crawford has a post on the lawyer who has agreed to represent Anders Behring Breivik, the Norwegian suspect who apparently has confessed to the bombing in downtown Oslo and the shooting spree that soon followed at the island summer camp, terrorist acts that claimed the lives of 76 individuals. Crawford transcribed a portion of the interview with the defense counsel, Geir Lippestad, part of which follows:

“For several hours he hesitated and discussed with friends and family whether to defend a man who only hours early had massacred 68 young people on a summer holiday island. But in the end his civic instincts trumped his initial horror. ‘I believe that the legal system is very important in a democracy and someone has to do this job,’ he told reporters this afternoon.”

Herewith my comment to her post:

Indeed, and let’s hope people do not draw any inferences about the lawyer based on the charges against his client (as happened in the case of lawyers who did pro bono work for accused terrorists detained at Guantanamo). Contrary to what some prominent legal ethicists believe, I don’t think lawyers should be praised or blamed for exercising their professional discretion with regard to whom they decide to represent. As Brad Wendel has argued, “the lawyer should be seen as endorsing more general political values embodied in the legal system,” and Geir Lippestad’s rationale for agreeing to represent Breivik is evidence of his more-than-verbal appreciation of the value of that endorsement [Crawford describes this decision in terms of ‘moral mettle.’] All defendants are entitled to due process and unqualifiedly deserving to be treated with dignity. As Joseph Raz explains in Ethics in the Public Domain (1994), “When people are called upon to make substantial sacrifices in the name of one of the fundamental civil and political rights of an individual, this is not because in some matters the interest of the individual or the respect due to the individual prevails over the interest of the collectivity or the majority. It is because by protecting the right of that individual one protects the common good and is thus serving the interest of the majority.” 

The “common good” in this instance includes the rules of criminal procedure in the legal system, a system conspicuous for endeavoring to instantiate the moral and political values enshrined in a constitutional democracy which, by definition, is committed to democratic law-making (be it constitutional, statutory, common, administrative or regulatory) and the “rule of law” generally.

Please note: Strictly speaking, Norway is a constitutional monarchy with a parliamentary system of government, while its constitution is correctly characterized as “democratic,” hence the title of the post.

The Economics of Unhappiness: A Syllabus

 
I want to thank, first, John Quiggin, whose original post at Crooked Timber (April 12, 2011):  “Towards an economics of unhappiness,” provide the inspiration for the following compilation. Second, thanks to Chris Bertram (another CT blogger) for suggesting some titles. As to the reason for assembling a list of readings on the “economics of unhappiness” instead of its converse, see Quiggin’s article below, although I’ve included works on the “economics of happiness” as well, the former necessarily implying some sense or understanding of the meaning of the latter (or, at minimum, a sense of what happiness simpliciter is or might be).

Introduction

The selections from Amartya Sen, Robert E. Lane, and Daniel M. Haybron below this introduction are by a way of a “groundwork” to the readings, perhaps exposing several presuppositions in the course of outlining fundamental (arguable if not controversial) economic, moral, and psychological (prima facie, not perfectly consistent) assumptions central to the motivation for composing this list. “Social democratic” and neo-Keynesian approach to our current economic woes strikes me as clearly preferable to both elitist economic proposals of neo-liberal pedigree and wildly implausible—because naïve and fantastic—yet vaguely populist libertarian yearnings. And yet I take to heart the following remarks from Ian Shapiro:

“The ambiguous moral status of Keynesianism and welfare economics has always inhered in the fact that they appeal to the short-term interests of the disadvantaged (such as unemployed workers and firms on the verge of bankruptcy during recessions) by ensuring subsistence, creating employment, and expanding credit, yet these policies are geared in the medium term to sustaining the system which generates those very disadvantages—hence the ironic force of Joan Robinson’s quip that the one thing worse than being exploited is not being exploited at all.” (Ian Shapiro, The Evolution of Rights in Liberal Theory, 1986: 152-153) 

In other words, we need to ask if Keynesian and welfare economics is capable of accomplishing what the New Deal and World War II did in the last century, namely, saving capitalism from itself. The manias, crashes, and panics endemic to capitalist cycles (Meghnad Desai) have heretofore been subject to (i.e., tempered or tamed by) Keynesian and conventional or neo-classical economic discipline, but one wonders if the combined effects of global economic consolidation and environmental degradation are creating conditions that render obsolete calcified models of neo-classical economic growth and capital accumulation. To be sure, in several important yet under-appreciated ways, the World Trade Organization (WTO), as an institution of global economic governance, represents economic and political progress (as Desai points out, its ‘structure is the most egalitarian of any of the international institutions—one country one vote’). Are the IMF and the World Bank amenable to truly social democratic-like economic reform? Can existing global institutions become susceptible to democratic transformation while a significant number of member states in the world system remain internally authoritarian? In short, is it possible to achieve a globally egalitarian (neo-) Keynesian Golden Age? Poverty remains recalcitrant in several regions of the world while regional and global inequality is increasing, economic facts we might grant without in any way diminishing the historic significance of capitalism for wealth creation (and thus betterment of standards of living if not quality of life indices). Are we, at last, reaching the structural limits of capitalist economic logic? Have we exhausted the economic—and, yes, moral—virtues of the neo-classical economic worldview? Or, are we merely at the lowest ebb of an economic cycle that will be cured by some fortuitous combination of conventional and creative politico-economic policies crafted by prudent democratic leaders of countries North and South? Is this a propitious time for seriously contemplating the imminent dissolution of the “aristocracy of capital” and the “economization of social relations?” Is the time ripe for (re)articulation of the authority of the Good by way of abandoning the capitalist criteria for market success? Are we prepared to break, once and for all, the structural socio-economic and political constraints of “capitalist democracy?” Must the welfare of the many and their generalizable interests remain subordinate to the welfare of capitalists and their particular or special interests? Are the interests of working people fated to be canalized into the exclusive pursuit of economic advantage? Must labor markets remain plagued by the material uncertainties and insecurities intrinsic to the private control of investment within the terms of finance capitalism?

The distorted and artificial needs and the individually and socially harmful desires generated by hyper-industrialized casino capitalism finds the masses in a state in which they feel an overwhelming need to be psychologically indemnified by the possession and consumption of as many goods and services as possible, in a socio-economic world in which conspicuous consumption exists side-by-side with absolute and relative poverty. In such a system capitalists are thus, at least psychologically speaking, every much victims as are the workers and the unemployed. Capitalist democracy remains committed to the aristocracy of Capital, meaning that, in the end, the special interests of capitalists trump generalizable interests tied to the common good, while economic insecurity compels workers to canalize their interests in the struggle for higher wages or short-term material gain. The aristocracy of Capital finds workers dehumanized insofar as they’re indemnified by the false promises of conspicuous consumption and irresponsible affluence, utterly distorting the pursuit of happiness and the potential of individuals for uniquely realizing values and manifesting virtues.

Can we, instead, accord socio-economic primacy to creating the necessary (and thus not necessarily sufficient) conditions for generalizing psychological and moral individuation or self-realization? Assuming the capacity to meet basic material human needs, can we resort to criteria associated with the recognition and fulfillment of our moral and spiritual needs by way of the regulation of economic life and therefore the subordination of economic life to the goals of establishing the conditions necessary for generalizing the pursuit of self-actualization or self-realization in a psychological, moral and spiritual sense, for generalizing the innate incentive toward worthy living, for generalizing, within the constraints of dignity and self-respect (as Dworkin says), the capacity for realization of what it means to live worthy lives? As John Dewey said, “Democracy has many meanings, but if it has a moral meaning, it is found in resolving that the supreme test of all political institutions and industrial arrangements shall be the contribution they make to the all-around growth of every member of society.”

Economic, Moral, and Psychological Groundwork

“It is useful to distinguish between two different criticisms that can be made of welfarism, and in particular of taking utility to be the only source of value. First, it can be argued that utility is, at best, a reflection of a person’s well-being, but the person’s success cannot be judged exclusively in terms of his or her well-being (even if social success is judged entirely by the constituent individual successes). A person may value the promotion of certain causes and the occurrence of certain things, even thought the importance that is attached to these developments are not reflected by the advancement of his or her well-being, if any, that they respectively cause. Second, it can be disputed that personal well-being is best seen as utility rather than in some other terms.

We can see the person, in terms of agency, recognizing and respecting his or her ability to form goals, commitments, values, etc., and we can also see the person in terms of well-being, which too calls for attention. This dichotomy is lost in a model of exclusively self-interested motivation, in which a person’s agency must be entirely geared to his own well-being. [….]

Respecting the agency aspect points to the appropriateness of going beyond a person’s well-being into his or her valuations, commitments, etc., but the necessity of assessing these valuations, commitments, etc. is not eliminated by the mere acceptance of that appropriateness. [….] [E]ven though ‘the use of ones agency is, in an important sense,’ a matter for oneself to judge,’ ‘the need for careful assessment of aims, objectives, allegiances, etc., and of the conception of the good, may be important and exacting’ [Sen here quotes from his previous works]. [….]

To judge the well-being of a person exclusively in the metric of happiness or desire-fulfilment has some obvious limitations. These limitations are particularly damaging in the context of interpersonal comparisons of well-being, since the extent of happiness reflects what one can expect and how the social ‘deal’ seems in comparison with that. A person who has had a life of misfortune, with very little opportunities, and rather little hope, may be more easily reconciled to deprivations than others reared in more fortunate and affluent circumstances. The metric of happiness may, therefore, distort the extent of deprivation, in a specific and biased way. The hopeless beggar, the precarious landless labourer, the dominated housewife, the hardened unemployed or the over-exhausted coolie may all take pleasures in small mercies, and manage to suppress intense suffering for the necessity of continuing survival, but it would be ethically deeply mistaken to attach a correspondingly small value to the loss of their well-being because of this survival strategy. The same problem arises with the other interpretation of utility, namely, desire-fulfilment, since the hopelessly deprived lack the courage to desire much, and their deprivations are muted and deadened in the scale of desire-fulfilment. [….]

Well-being is ultimately a matter of valuation, and while happiness and the fulfillment of desire may well be valuable for the person’s well-being, they cannot—on their own or even together—adequately reflect the value of well-being. [….] It is, therefore, arguable that since the claim of utility to be the only source of value rests allegedly on identifying utility with well-being, it can be criticized both:

1. on the ground that well-being is not only the only thing that is valuable;

2. on the ground that utility does not adequately represent well-being.

In so far as we are concerned with people’s achievements, in making ethical judgment, utility achievement may well be partial, inadequate and misleading.”—Amartya Sen

“…[L]et me state at the outset that I do not think that hedonic criteria are enough for evaluating the good society. For one thing, pursuit of happiness without pursuit of another goal is impossible or at least self-defeating. The very logic of happiness, then, implies that there is something else worth pursuing whose pursuit or attainment is itself a source of happiness. [….] Others may have different candidates, but I find it convenient and fruitful to think of the following coordinate, ultimate goods as a trinity: subjective well-being, human development (including virtue), and justice, no one of which may be resolved into or subordinated under another. [….]

Amidst the satisfaction people feel with their material progress, there is a spirit of unhappiness and depression haunting advanced market democracies throughout the world, a spirit that mocks the idea that markets maximize well-being and the eighteenth-century promise of a right to the pursuit of happiness under benign government’s of people’s own choosing. The haunting spirit is manifold: a postwar decline in the United States in people who report themselves as happy, a rising tide in all advanced societies of clinical depression and dysphoria (especially among the young), increasing distrust of each other and of political and other institutions, declining belief that the lot of the average man is getting better,  a tragic erosion of family solidarity and community integration together with an apparent decline in warm, intimate relations among friends.”

“How account for this combination of growing unhappiness and depression, interpersonal and institutional distrust, and weakened companionship in advanced market democracies, in which people are, with important exceptions, reasonably well-off? The populations of these countries do not press against their resources; they can expect to live longer than their parents, and their old age is reasonably protected; there is (still) a safety net to catch them if they lose their jobs or become ill; their children are not likely to die in childhood, and these children have available to them more educational facilities than were available to their parents; they do not live in police states but rather have some assurance of due process of law; and they are offered reasonably adequate opportunities to participate in political decisions affecting their own fates.”

“…[P]eople are not very good judges of how, even within the private sphere of their own lives, to increase, let alone maximize, their happiness. It is not just that they are embedded in an economistic culture that misleads them, or even that they are governed by misleading ideologies; rather, the problem is that people often choose of their own accord paths that do not lead to their well-being: they escalate their standards in proportion to their improved circumstances, choose short-run benefits that incur greater long-term costs, fear and avoid the means to their preferred ends, infer from early failures an unwarranted and disabling incompetence.”—Robert E. Lane

The "Job Creators," the American Economy, Foreign Jobs, and Republican Lies

The Wall Street Journal reports today that the top 500 U.S. companies have the highest earnings in four years, but there is no indication that this has been good for American jobs or the American economy. As Paul Huck, chief financial officer of Air Products and Chemicals Inc., told the Journal, "We aren't creating jobs." The source of profits has been growth in foreign markets. Thus it is not surprising that U.S. multinational corporations cut U.S. jobs by 2.9 million during the 2000s while increasing jobs overseas by 2.4 million. One of the exceptions to this trend is Caterpillar which is expanding in the United States. But Caterpillar warns about the absence of a long term plan to improve the country's infrastructure which undermines business confidence.

What is surprising are not these statistics, but that our public discourse has come to the point that it is within the realm of acceptable politics for the Republicans to openly lie about their motivation for protecting the wealthy from taxation.

Better to be a Pastor than a Culture Warrior

Michael Sean WInters has a column here attacking the appointment of Bishop Caput to the archdiocese of Philadelphia. It is an easy column to write and he writes it well. From Winters' perspective Caput is a culture warrior and a poor pastor. In my favorite part of the column, he contrasts the action of Caput in excluding the child of lesbian parents (but apparently not the children of divorced parents) from a Catholic school with an action of then Bishop, now Cardinal Sean O'Malley: "[I}n Boston, Chaput’s seminary classmate, Cardinal Sean O’Malley reached a completely different conclusion in circumstances that were almost identical, adopting a policy that does not discriminate against any children. Cardinal O’Malley is just as orthodox and just as conservative as Archbishop Chaput. The difference? O’Malley is not a culture warrior, he is a pastor. Here is how O’Malley explained his decision in his blog: 'As a young bishop in the West Indies I once celebrated a memorial Mass for a local ‘madame’ who ran a brothel near my Cathedral. It was said she smuggled women in from other islands in oil barrels for her business. Some women suffocated in the crossing. She herself was murdered by her lover. At the Mass I met the woman’s daughter, a lovely little girl. I asked her what grade she was in. She replied that she didn’t go to school. I sent a stern glance to her grandmother, who said: "Her name is the same as that of the brothel. The other children were so cruel to her, she left the public school." I told her grandmother, ‘Take her to the Catholic school tomorrow.’

"'Catholic schools exist for the good of the children and our admission standards must reflect that. We have never had categories of people who were excluded. We have often given preference to children from a parish where a school is located, siblings of children already enrolled at the school or Catholic children from nearby parishes. Sometimes we might not be able to accept children, because of behavioral problems or other circumstances that would be disruptive to a school community. While there are legitimate reasons that might lead to a decision not to admit a child, I believe all would agree that the good of the child must always be our primary concern.'

"The difference in tone is obvious, but the difference is more than one of tone. Cardinal O’Malley, by avoiding an opportunity to win a skirmish in the culture war instead provided his flock with a parable worthy of the Gospels. He did not just do right by the child, he called everyone involved – and everyone reading his blog, to holiness which, for a Christian, must include reaching out to and embracing those whom society marginalizes. The problem with the culture war approach is that it loses the Gospel in its defensive moralism. So busy wagging a finger at the culture (certainly never at oneself or at the Church) the culture warrior never engages the culture in a way that makes evangelization possible. As Cardinal Francis George has written, 'We have to form people with a genuine love of today’s city and love our culture itself. Even with its demonic elements, the culture must be loved, because you cannot evangelize what you do not love.'"

Don't Increase Taxes on the Job Creators

The Republican most recent script is that we should not increase taxes on the job creators. Job creators is the Republican's misleading euphimism for the filthy rich. Well I think we should take the Republicans up on the letter of their offer. Increase taxes on the wealthy, but allow them an exemption if they can show that the increase would get in the way of their creating American jobs. In fact, most of the wealthy can show no such thing. Even if they produce goods and services, they may be relying on job-killing automation; even if they create jobs they may not be American jobs. And a large part of the wealthy do neither. If one really wanted to create jobs, it would be necessary to transfer money from the wealthy to the poor and the middle class. So doing would increase the demand for products and create a market stimulus to meet that demand.

The Republican are going to find it increasingly hard to persuade anyone that they give an economic hoot about anyone who does not line their pockets.

 

Time to Lobby for the Poor

Tikkun sent an e-mail today observing that cuts to programs that affect the poor are very much in contemplation in the current negotiations. Tikkun urges people to contact their representatives. Here is what I wrote: "In settling the debt limit crisis, please vote against any package that includes cuts in Head Start, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), food aid, or poverty-focused development assistance. Do not harm the poor! Better to let the Republicans cause a big crisis to their detriment than allowing them to undermine the moral fiber of the country by a thousand cuts."

Akbar

 

One often hears crude—because grandiose and stereotypical—generalizations about Islam and civilization, Islam and women, Muslims and politics, Muslims and violence, Islam and other religions, Islam and democracy or Islam and secularization. Such generalizations are common but counterfeit currency in the public realm, often circulated and cashed in by professors, pundits, and public intellectuals who should know better. As stated, these generalizations are typically false, betraying a disturbingly facile if not unhistorical understanding of Muslims and the Islamic world. By way of a very modest contribution to combating such nonsense, I thought I’d provide a bare bones introduction to the most impressive of the “talented line of Great Mughal rulers.”

Jalāl-ud-dīn Muhammad Akbar (1542-1605) was a remarkable ruler of the Mughal Empire on the Indian subcontinent from 1556-1605. Akbar is clearly deserving of the honorific appellation, “Great Mughal,” his reign exemplifying the general qualities of good government and governance in a manner far ahead of his time and place. Indeed, along with the Buddhist emperor Aśoka (ca. 304–232 BCE), Akbar “is remembered as the greatest ruler India has seen.” Stanley Wolpert provides us with a succinct summary of his reign:

“Akbar’s unique achievement was based on his recognition of the pluralistic character of Indian society and his acceptance of the imperative of winning Hindu cooperation if he hoped to rule this elephantine empire for any length of time. [….] [In 1562], Akbar showed his capacity for wise as well as generous rule by abolishing the practice of enslaving prisoners of war and their families, no longer even forcibly converting them to Islam. The following year (1563), he abolished the tax that from time immemorial had been exacted by kings from Hindu pilgrims traveling to worship at sacred spots throughout India. [….] In 1564 he remitted the hated jizya (non-Muslim poll tax), which was not reimposed for more than a century, and with that single stroke of royal generosity won more support from the majority of India’s population than all other Mughal emperors combined managed to muster by their conquests. [….] By pacifying Afghanistan for the remaining quarter century of his rule, Akbar managed to achieve more than that of either the Mauryas or the British, and after conquering those regions he established stable administration within them, creating a pattern followed by his Mughal descendants as well as by early British administrators. [….] [His] efficient administrative system help stimulate and expand India’s economic development and trade, foreign as well as domestic. [….] [Finally], the average inhabitant of Akbar’s India was economically better off than his peasant heirs have subsequently been.” (Wolpert 1977: 127-131)

Akbar held a variety of other historically progressive views: on the treatment of women, he opposed the long entrenched custom of child marriage, arguing that “the object that is intended” in such a  marriage “is still remote, and there is immediate possibility of injury.” In fact, Akbar disapproved of slavery, sati and polygamy. His vigorous support of religious pluralism and toleration did not preclude a critical and comparative assessment of the strengths and weaknesses of various worldviews:  “in a religion [Hinduism] that forbids the remarriage of the widow, the hardship is much greater.” With regard to the division of property, however, however, he lamented the fact that “in the Muslim religion, a smaller share of inheritance is allowed to the daughter,” proposing instead that, “owing to her weakness, she deserves to be given a larger share” (Sen 2005: 290-291). With regard to religious pluralism and toleration, Amartya Sen writes of the Great Mughal’s

“sponsorship and support for dialogues between adherents of different faiths, nearly two thousand years [after the Buddhist ruler Aśoka’s championing of same]. Akbar’s overarching thesis that ‘the pursuit of reason’ rather than ‘reliance on tradition’ is the way to address difficult problems of social harmony included a robust celebration of reasoned dialogues. [….] Akbar not only made unequivocal pronouncements on the priority of tolerance, but also laid the formal foundations of a secular legal structure and of religious neutrality of the state, which included the duty to ensure that ‘no man should be interfered with on account of religion, and anyone is allowed to go over to a religion that pleases him.’ [….] While the historical background of Indian secularism can be traced to the trend of thinking that had begun to take root well before Akbar, the politics of secularism received a tremendous boost from Akbar’s championing of pluralist ideals, along with his insistence that the state should be completely impartial between different religions.” (Sen 2005: 16-19)

Finally, patronage of all the arts was, but in particular painting and architecture, flourished as well during his reign, made possible by the vast reserves of treasure held by a fiscally sound state (the imperial finances said to be ‘managed by brilliant administrators’). Sen notes that Akbar’s “political decisions also reflected his pluralist commitments, well exemplified even by his insistence on filling his court with non-Muslim intellectuals and artists (including the great Hindu musician Tansen) in addition to Muslim ones, and, rather remarkably, by his trusting a Hindu former king (Raja Man Singh), who had been defeated earlier by Akbar, to serve as the general commander of his armed forces.”

References & Further Reading:

• Habib, Irfan, ed. Akbar and His India. Delhi: Oxford University Press, 1997.
• Moosvi, Shireen. Episodes in the Life of Akbar: Contemporary Records and Reminiscences.  New Delhi: National Book Trust, 1994.
• Robinson, Francis. The Mughal Emperors and the Islamic Dynasties of India, Iran, and Central Asia. London: Thames & Hudson, 2007.
• Sen, Amartya. The Argumentative Indian: Writings on Indian History, Culture and Identity. New York: Farrar, Straus and Giroux, 2005.
• Wolpert, Stanley. A New History of India. New York: Oxford University Press, 1977.

Should Religious Associations Be Allowed to Discriminate?

That question is the title of a new paper by South African constitutional and human rights scholar David Bilchitz, to be published in the South African Journal of Human Rights, Vol. 2, 2011.  The paper is also available for free download at SSRN, here.  Recommended reading.  Here's the abstract:

Should religious associations be allowed to engage in acts of discrimination on grounds prohibited in the Constitution where they claim their religious doctrines require it? This paper argues for this question, in general, to be answered in the negative and seeks in the process to explore the tension between advancing equality in South African society whilst recognizing the autonomy of private associations. The Strydom case – dealing with the dismissal of a gay music teacher from a church on grounds of his sexual orientation – provides the backdrop for an analysis of these issues. The paper critiques the work of two authors – Patrick Lenta and Stu Woolman – who argue that greater emphasis should be placed on freedom of association in these circumstances even where such associations promote values that are in direct contradiction to those contained in the Constitution. For Lenta, the core concern relates to ‘protecting diversity’ whilst, for Woolman, it involves ensuring a society with a high quantity of ‘social capital’. I shall argue that both authors pay insufficient attention to the South African context which provides a strong case for a presumption in favour of equality and non-discrimination. Moreover, an engagement with the history of religion of South Africa provides strong reasons to avoid simply leaving a private religious domain alone that is at odds with the political morality of the state. I shall also seek to show that the very values that both Lenta and Woolman are concerned with do not unequivocally support their conclusions and in fact provide a case for the contrary point of view. The arguments I provide seek to establish that courts should refuse to condone discrimination on prohibited grounds even where this occurs on the basis of religious doctrines. Ultimately, the paper argues for South Africa to adopt an egalitarian form of liberalism which recognizes limits on the freedom of religious associations to discriminate as this is necessary to ensure respect for the equal dignity of all individuals in the polity.

Human Rights? A Divine Creation?

Yesterday, Michael referred to a column by Anat Biletski here that argued against the idea that human rights have a divine foundation. Bietski maintains that grounding human rights in divine authority drains the humanity from human rights. Thus, Abraham would have killed Isaac if angels had not intervened says Biletski (Should Abraham have tortured Isaac if God asked him to?). 

At some points Biletski seems to be disagreeing with Ronald Dworkin, but they are both working the same side of the street - except Dworkin is at pains to argue that grounding human rights outside the divine is not inconsistent with the Divine or even with Divine authority though the Divine cannot on Dworkin's account command violations of human rights. In a very interesting discussion (at least to me), Dworkin says that he is "taking sides in an ancient theological controversy. Is a god good because he obeys moral laws, or are certain moral laws moral laws only because god had commanded them?" Justice for Hedgehogs 341 (2011). Dworkin suggests that the "familiar idea that a god is the ultimate source of morality is confused: the old churchmen who said that his goodness reflects some independent moral law or truth had the better of the argument." Id. at 342. If one accepts Dworkin's account, what is one to say of the Abraham/Isaac story?

Beyond the divine grounding of human rights (or not), I wish that Dworkin had  convincing arguments for his conceptions of the ontology, epistemology, or structure of moral rights (all of which are detailed in his book). In the end, I do not believe that the grounding of human rights can be justified with knockout arguments, nor do I believe that there are knockout arguments for human rights across the many contested areas involved (in fairness, Dworkin does not think so either). People either need to accept forced arguments, follow deliberative intuitions, and/or be comfortable with ambiguity. 

 

 

The Berrigans

This, in yesterday's NYT, caught my eye and may be of interest to a few other oldtimers:  A story about the recent marriage of Frida Berrigan--"the eldest child of Philip Berrigan and Elizabeth McAlister, a Roman Catholic priest and a nun who left their callings and found Jonah House together in 1973," and therefore the niece of Daniel Berrigan--and Patrick Sheehan-Garner, whom she met at the Catholic Worker in New York City.  Nice story, here. 

"The Sacred and the Humane"

In the New York Times piece to which I link below, Professor Biletzki describes my book The Idea of Human Rights as "recent".  But the book is not so recent:  It was published in 1998.  For my my recent, ongoing work on the issues Professor Biletzki discusses, see these two papers:

The Grounds of Human Rights, http://ssrn.com/abstract=1824667.

What Is a "Human Right"?, http://ssrn.com/abstract=1824662.

Here is Biletzki's commentary:

OPINION   | July 17, 2011
The Stone: The Sacred and the Humane
By ANAT BILETZKI
Does it matter whether our belief in human dignity originates in a belief in God?

Why the Republicans (and the Democrats) are Wrong About the Market

The Rev. Seamus P. Finn argues in the Huffington Post in favor of acting in various ways that require corporations to be guided by ethical values. This is noble work, but it is not likely to be effective. Corporations are selfish profit machines. The drive for profits is built into the system. In the abence of legal controls that will minimize profits for particular behavior, corporations will do what competition requires.

Both the Republicans and the Democrats now praise the ability of the market and the curtailment of government spending to help our economy. But there is no reason to think that the Republican formula and the Democratic cave in will produce American jobs. In a global economy, American companies will seek cheap labor outside the country and will invest in labor saving technology. This may be good for the stck market, but it is bad for American employment. If one wants to improve our employment situation, the solution has to be balanced between the market and the government. Increasing taxes to support government programs that use American employees to rebuild American infrastructure will do more to reduce unemployment rather than leaving it in the hands of the wealthy.

The Republicans believe that the market will produce efficient gains. Even if true, there is no reason to belive that global efficiency would reduce American unemployment.

The New York Times & The Israeli-Palestinian Conflict

 

From Anthony Alessandrini, “Palestine in Scare Quotes: From the NYT Grammar Book,” at Jadaliyya  (July 12, 2011):

When I feel the need for my blood pressure to go up, I read the New York Times’ coverage of Israel-Palestine.

The extent to which the Times’ reporting (or misreporting) is deeply slanted, selective, and misleading has been thoroughly documented in Richard Falk’s and Howard Friel’s Israel-Palestine on Record: How the New York Times Misreports Conflict in the Middle East. Meanwhile, Electronic Intifada and Mondoweiss provide excellent ongoing critiques of the Times’ day to day coverage (see, for example, this recent piece by Ali Abunimah), and both were quick to report the seemingly obvious conflict of interest in the fact that Jerusalem Bureau Chief Ethan Bronner’s son is currently serving in the Israeli Defense Forces. The Times’ editor-in-chief responded to the revelation of this fact by dismissing its effect upon Bronner’s reporting, even going so far to suggest that his “personal ties in the region” help to “supply a measure of sophistication about Israel and its adversaries that someone with no connections would lack” (‘connections’ in this case seem to stand in for, say, ‘expertise’ or ‘knowledge’ — as though critics might suggest replacing Bronner with a journalist who knew nothing about the region). As’ad AbuKhalil has noted that Bronner and the Times, in covering the Goldstone Report, have “devoted more space to Israeli and Zionist criticisms of the Goldstone report than to the report itself,” while Fairness & Accuracy in Reporting (FAIR) has produced a number of exemplary media critiques of the Times, for example a blistering criticism of the paper’s coverage of Operation Cast Lead and its horrifying effect in Gaza, noting that when it comes to addressing the facts on the ground in Gaza, the Times’ fetish for “balance” and “equivalence” leaves readers with “the sense that the truth is too one-sided.”

Is it worth our while to give so much time and attention to the Times’ coverage? Of course, the Gray Lady is the object of criticism from both left and right, and a glance at the comments section for any Times article on Israel-Palestine reveals that there are as many readers who consider the paper to be a seething hotbed of Hamas apologists as there are those who see a pro-Zionist bias. There’s almost a jeering reflection here of the Times’ own ideology of “balance.” So don’t we face the danger of simply falling into this endless echo chamber of criticism? Furthermore, is it perhaps absurd to expect anything better from mainstream media in the U.S. when it comes to Israel-Palestine?

If I continue to think that it’s worth engaging with the Times’ coverage of Israel-Palestine, this may have something to do with my own work teaching at a public two-year college in the CUNY system. Many of my colleagues use the New York Times as a text in their classes; I don’t, but I certainly would like my students to become readers of the Times — skeptical, disturbed, deeply critical readers, but readers nonetheless. For better or worse, the paper continues to act as a sort of cultural and political touchstone for U.S. society (whether this will still be true in five or ten years, given the evolution of electronic media, is a different question), of the sort that I would like my students to have access to — at least in part because the stories of their lives, too, can be found refracted and distorted in the pages of the Times. [….]

The remainder of the article is here.

Further Reading:

• Dunsky, Marda. Pens and Swords: How the American Media Report the Israeli-Palestinian Conflict. New York: Columbia University Press, 2008.
• Falk, Richard and Howard Friel. Israel-Palestine on Record: How the New York Times Misreports Conflict in the Middle East. London: Verso, 2007.
• Hafez, Kai, ed. Islam and the West in Mass Media: Fragmented Images in a Globalizing World. Cresskill, NJ: Hampton Press, 2000.
• Hafez, Kai, ed. Arab Media: Power and Weakness. New York: Continuum, 2008.
• Hafez, Kai and David L. Paletz, eds. Mass Media, Politics, and Society in the Middle East. Cresskill, NJ: Hampton Press, 2001.
• Karim, Karim H. Islamic Peril: Media and Global Violence. Montreal: Black Rose Books, 2000.
• Lynch, Marc. Voices of the New Arab Public: Iraq, Al-Jazeera and Middle East Politics Today. New York: Columbia University Press, 2007.
• Said, Edward W. Covering Islam: How the Media and the Experts Determine How We See the Rest of the World. New York: Vintage Books, 1997.Sakr, Naomi. Satellite Realms: Transnational Television, Globalization and the Middle East. London: I.B. Tauris, 2002.
• Sakr, Naomi. Arab Television Today. London: I.B. Tauris, 2007.
• Sakr, Naomi, ed. Arab Media and Political Renewal: Community, Legitimacy and Public Life. London: I.B. Tauris & Co., 2007.
• Shaheen, Jack G. Guilty: Hollywood’s Verdict on Arabs After 9/11. Northampton, MA: Olive Branch Press/Interlink, 2008.
• Shaheen, Jack G. Reel Bad Arabs: How Hollywood Vilifies a People. Northampton, MA: Olive Branch Press, 2001.

How Clergy Helped a Same-Sex Marriage Law Pass

By SAMUEL G. FREEDMAN

NYT, July 16, 2011

Early in the week that ended with New York enacting same-sex marriage, the Rev. Anna Taylor Sweringen stood in a hallway just outside the State Senate chambers. She wore her clerical collar and held a sign saying, “Equality now.” Around her gathered ministers and rabbis of similar sentiment, all in Albany to lobby and pray for the right of gay couples to wed.

As Ms. Taylor Sweringen looked down the corridor, she saw the mirror image of mobilized clergy members, all irreconcilably opposed. One held a placard declaring, “God says no.” Then the assemblage broke into a gospel song. “I told Satan to get thee behind,” it went. “Victory today is mine.”

Among her allies, Ms. Taylor Sweringen responded with a spiritual from the civil rights movement, “I’m Gonna Sit at the Welcome Table.” Soon the dueling choirs were lining up along facing walls, barely inches apart, and the state police had to clear a path between them like a boxing referee.

[Read the rest here.]

I am in Paris finishing up the teaching of a course in Comparative Free Speech, Press, and Religion. This week among other things I taught the major Canadian cases on pornography and hate speech. I was struck again about what I consider too be their superior approach to the use of social science evidence in considering free speech problems. In Regina v. Butler, for example, the Court agrees that the social science evidence is instructive, but inconclusive. Nonetheless, it proceeds with the assumption that it is sensible to believe that readers are influenced by what they consume in the form of reading or video. Contrast that with our Court's approach in the violent video game context. There they strike down California's law in large part on the ground that the social science evidence is inconclusive (despite the conclusions of the medical associations including the American Psychological Association, the American Pediatric Association, and the American Medical Association). Assuming the evidence is inconclusive, it is not clear that we should wait until social scientists prove the obvious. The Court, however, is applying strict scrutiny unlike the Canadian Court. But that too is a mistake, a mistake that involves a predetermined undefended assumption that speech - even speech of trivial value - always outweighs other values. That assumption has not ordinarily guided the Court in its development of First Amendment law. It has been solidified only in the last two terms. It is one of the many major faiures of the current Court.

Our Constitution and the Debt Ceiling Crisis

Mike Dorf has a wise post about the relationship between the structure of our Constitution and the debt crisis (here). His argument is that the system of checks and balances has played an integral role in creating the crisis: "To paint with a very broad brush, if you think that the aggregate risks of government making changes to the status quo are greater than the risks of doing nothing, you will favor a separation-of-powers regime like our own.  Conversely, if you think that on average, the risks of doing nothing are greater than the risks of bad government action, you will favor a parliamentary system.

"Certainly in the current situation, it is easy to see how our Constitution is contributing to the basic problem, because the greater danger is posed by inaction.  If we had a fully Democratic Congress (including a large enough majority in the Senate to override a filibuster), the debt ceiling would be raised.  Ditto if we had a fully Republican Congress and a Republican President.  Neither party would want to be clearly on the hook for the economic disaster that would follow.  But with divided government, we get brinksmanship that could actually lead to default, which anyone with any sense at all will agree is a terrible outcome.   We could end up there nonetheless because divided government means that no one knows for sure who will be blamed.  Or as Wilson  put it: 'If there be one principle clearer than another, it is this: that in any business, whether of government or of mere merchandising, somebody must be trusted, in order that when things go wrong it may be quite plain who should be punished.'"

Big Sur, Zen Monks & Wildfire

 

Having worked on Forest Service and contract fire crews back in my 20s, with a longstanding personal and philosophical interest in Buddhism, and believing Big Sur to be—most of the time—heaven on earth, I thought this book by Colleen Morton Busch looks inviting (in other words, I’ve yet to read it).

There’s a review by a Buddhist monk and writer in today’s Los Angeles Times here.

Religion & Public Reason

 
I want to recommend to readers Paul Horwitz’s book, The Agnostic Age: Law, Religion and the Constitution (2011). A succinct review by Marc O. DeGirolami in The New Republic is here. Perhaps our two resident experts on this subject, namely, Steve Shiffrin and Michael Perry, will find time to comment on Paul’s book.

I especially like this, Rawlsian-like (and Habermasian) conclusion (at least so it seems to me) from the book:

“[A]lthough there is no constitutional rule disabling individuals from making religious arguments in public debate, as a practical matter we can still think about the best ways for people to engage in public debate. Citizens and public officials should not argue that particular kinds of reasons, such as religious reasons, are simply and absolutely out of bounds in public discourse. But they remain free to argue that particular kinds of reason are likely to be less persuasive in public discussion. One may even hope that citizens and public officials who have adopted the agnostic habit will, without abandoning their own conclusions on questions of religious truth, attempt to inhabit and appreciate the views of others [this could be said to represent the Smithian view of sympathy in happy conjunction with his notion of the ‘impartial spectator’]. If they do, their respect for this diversity of views will encourage them to offer a variety of arguments, some of which will appeal to citizens from diverse religious and non-religious backgrounds.” (p. 270)

As Amartya Sen points out in The Idea of Justice (2009), “Despite the differences between the distinct types of arguments presented by [Adam] Smith, Habermas and Rawls, there is an essential similarity in their respective approaches to objectivity to the extent that objectivity is linked, directly or indirectly, by each of them to the ability to survive challenges from informed scrutiny coming from diverse quarters.”

And both citizens and public officials need not, generally, worry about threats to their particular formulations of well-considered religious truth provided they keep in mind the following (Or something similar, say, Michael Lynch’s argument that metaphysical pluralism is in fact compatible with realism of a kind, as we need not be anti-realists in claiming that propositions and facts concerning the nature of reality are relative to conceptual schemes of worldviews, or Kurt Gödel’s demonstration that one cannot definitively prove the formal consistency of an axiomatic system from within the principles of that system.):

“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. [….] 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.” (Nandini Iyer, “It Ain’t Necessarily So,” in Knut A. Jacobsen, ed., Theory and Practice of Yoga: Essays in Honour of Gerald James Larson, 2005: 123)

I think human rights discourse has become entrenched because arguments in support of same have done just that, namely, proffered a variety of arguments (originating from motley worldviews or ‘comprehensive doctrines’) from which diverse individuals and groups have been able to reason from their “own” values and premises (or their normative conceptions of ‘the good’) to shared conclusions (about the fundamental importance of human ‘dignity’ and inherent worth for example). In Rawlsian terms, we could say—with Gerald Gaus—that “[given the fact] that a comprehensive view is a system of thought that is wide in scope and rich in content, ranging over many areas of life, a simple prohibition on appeal to comprehensive views is unable to exclude moral, religious or philosophical beliefs—as opposed to comprehensive views or general theories—from serving as the basis for an exercise of political power that meets the criterion of Liberal Legitimacy.”

The “political,” being those matters upon which human reason converges, can originate from a variety of worldviews or comprehensive doctrines but not qua doctrines or worldviews (as Hilary Putnam and my late teacher Ninian Smart argued, it makes no sense to judge or assess the truth of worldviews or ‘ways of life’ in toto). Hence, too, the appeal of Rawls’s notion of an “overlapping consensus,” which represents the emergence of a convergent public justification. As Nicholas Rescher reminds us, “For all practical purposes—and for all implementable theoretical purposes as well—a plurality of beliefs about the truth (a plurality of visions) is a plurality of formulations of the true (a plurality of versions). And this fact is something we must somehow come to terms with.” The likelihood of an “overlapping consensus” is perhaps enhanced by the fact that most of us, “when it comes to the crunch,” or if we are honest with ourselves, do not possess systematic (or even ‘coherentist’) comprehensive doctrines or worldviews, however much we find individual and group psychological solace in privately and publicly identifying with “official” descriptions of such doctrines and worldviews:

“We have an amalgam of beliefs, which we may publicly characterize in a certain way. I may say that I am an Episcopalian, but how much of my real worldview [or what may be called a ‘lifeworld’ insofar as it is an individual expression of a worldview] corresponds to the more or less ‘official’ worldview which tells me nothing directly about cricket, being Scottish, having a certain scepticism about nationalism, thinking there is life on other worlds, shelving the problem of evil, or other matters. Our values and beliefs are more like a collage than a Canaletto [cf. Lévi-Strauss’s use of the term ‘bricolage’]. They do not even have consistency of perspective.” (Ninian Smart)

Suicide

This piece appeared in yesterday's (Sunday's) NYT.  The author has Lou Gehrig's disease and is planning to commit suicide.  His story bears directly on the controversial issue of physician assisted suicide.  Well worth reading.

Dudley Clendinen, The Good Short Life.

 

"Death Penalty, Still Racist and Arbitrary"

From this week's NYT:

OPINION   | July 09, 2011
Op-Ed Contributor:  Death Penalty, Still Racist and Arbitrary
By DAVID R. DOW
Those who kill white people are more likely to be sentenced to death than those who kill blacks.

 

Pelican Bay Prisoners on Hunger Strike

 

The Los Angeles Times is reporting that last week, “inmates in the Security Housing Unit at Pelican Bay State Prison stopped eating meals in protest of conditions that they contend are cruel and inhumane.” News of the strike, which began July 1, has spread, and inmates in prisons throughout California are said to have joined in solidarity: “There are inmates in at least a third of our prisons who are refusing state-issued meals,” said Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation.

Prisoners engaged in “extra-legal” nonviolent protest of course have a short menu of means from which to select from, and a hunger strike is one of the more prominent and time-honored such means. A hunger strike is similar to “fasting,” but the two are not identical, as the latter is often motivated by medical or religious reasons, while the former is more frequently undertaken in a largely socio-economic or political context of some sort. In India, for example, a hunger strike (dhurna), has long been a weapon of “passive resistance,” employed by entire communities to shame a ruler into granting their just demands, for example, or even by creditors sitting “at the door of debtors who ignored legitimate claims on them.” In more intimate spheres like the family, a fast has frequently been used as “a means of arousing the conscience of a loved one,” a practice that serves to blur the boundaries between a hunger strike and a fast. Moreover, a “fast” can take on political dimensions,* as was the case with Mahatma Gandhi (who happened to set quite stringent standards for employing this ‘fiery weapon’ of last resort from the armory of satyāgraha) and, in our country, César Chávez, who co-founded (with Dolores Huerta) the National Farm Workers Association, better known later as the United Farm Workers (UFW). While Chávez fasted under the justificatory rubric of “spiritual personal transformation” and thus for Catholic penitential reasons, there was an ineluctable political aspect involving nonviolent protest and preparation for civil disobedience campaigns.

Incidentally, my interest in this topic is not attributable solely to the fact that “[h]unger strikes have deep roots in Irish society and in the Irish psyche,” the 1981 hunger strike coming quickest to mind owing in part to the fact that its leader, Bobby Sands, was elected to the United Kingdom Parliament during its course, although he soon died as a result of the strike at HM Prison Maze in Northern Ireland (ten prisoners starved themselves to death before the strike was called off).

The LA Times article is here. See too this post by Sara Mayeux (of Prison Law Blog fame) at The Informant, the crime-and-punishment blog of NPR affiliate, KALW. And I have a post from last year titled “Cruel and Unusual Punishments” that may be of interest.

*A fairly recent exemplary instance of this took place among the revolutionary and reformist democratic opposition in Poland from 1976-1981. In particular, members of KOR, the Workers’ Defense Committee (later: Komitet Samoobrony Społecznej KOR/Social Self-Defense Committee, KSS-‘KOR’) engaged in several fasts believed to clearly reflect a “Christian ethos” even among majority of its non-religious member: hence, for example, the title of Jacek Kurón’s essay (published in Znak under the pen name Elzbieta Borucka), “A Christian Without God.” In this case, such an ethos meant refusing to make a distinction between “private” and “public” ethics, a refusal perversely reinforced within an authoritarian society wherein ostensibly private or intimate behavior often has, for better and worse, political reverberations. Recall that it was KOR that played a direct “service” role in the emergence of Solidarity (or Solidarność, the first non-Communist party-controlled trade union in the Warsaw Pact countries) in 1980. Fasts in which KOR and other opposition members participated occurred in the first instance at Catholic churches (which provided some measure of political ‘protection’), although sympathizers unable for one reason or another to frequent the churches fasted in support of these collective nonviolent protests. Fasts were undertaken on behalf of the release of imprisoned workers and in solidarity with Czechs fasting in defense of political prisoners. The “spillover” or “by-product” effects of one such fast is both representative and intriguing, as it was said to

“create an atmosphere of seriousness and deep concentration, which was achieved not at the price of isolation, but in relation to others, to the human ties and feelings among friends. In addition, the fast united both believers and non-believers around common values and the goals ensuing from them, and therefore it became a great event of what might be called ethical ecumenical significance.” Please see the book from which this quote was taken for discussion of this and other methods of nonviolent action employed by KOR: Jan Jósef Lipski (Olga Amsterdamska and Gene M. Moore, tr.). KOR: Workers’ Defense Committee in Poland, 1976-1981. Berkeley, CA: University of California Press, 1985.

Further Reading:

• Abramsky, Sasha. American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment. Boston, MA: Beacon Press, 2007.
• Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The Free Press, 2010.
• Brook, Daniel. “History of Hard Time: Solitary Confinement, Then and Now,” Legal Affairs (January/February 2003).
• Cole, David. No Equal Justice: Race and Class in the American Criminal Justice System. New York: The Free Press, 1999.
• Cusac, Anne-Marie. Cruel and Unusual: The Culture of Punishment in America. New Haven, CT: Yale University Press, 2009.
• Dalton, Dennis. Mahatma Gandhi: Nonviolent Power in Action. New York: Columbia University Press, 1993.
• Dayan, Colin. The Story of Cruel & Unusual. Cambridge, MA: MIT Press (A Boston Review Book), 2007.
• Garland, David, ed. Mass Imprisonment: Social Causes and Consequences. London: Sage, 2001.
• Gilmore, Ruth Wilson. Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California. Berkeley, CA: University of California Press, 2007.
• Human Rights Watch (2001) “No Escape: Male Rape in U.S. Prisons.”  http://www.hrw.org/reports/2001/prison/
• Human Rights Watch (2003) “Ill-Equipped: U.S. Prisons and Offenders with Mental Illness.”  http://www.hrw.org/reports/2003/usa1003/
• Irwin, John. The Felon. Berkeley, CA: University of California Press, 1990 ed.
• Irwin, John. The Warehouse Prison: Disposal of the New Dangerous Class. Los Angeles, CA: Roxbury.
• Lynch, Mona. Sunbelt Justice: Arizona and the Transformation of American Punishment. Stanford, CA: Stanford University Press, 2010.
• Rhodes, Lorna A. Total Confinement: Madness and Reason in the Maximum Security Prison. Berkeley, CA: University of California Press, 2004.
• Santos, Michael G. Inside: Life Behind Bars in America. New York: St. Martin’s Press, 2006.
• Sharp, Gene. The Politics of Nonviolent Action, Part Two: The Methods of Nonviolent Action. Boston, MA: Porter Sargent, 1973.
• Simon, Jonathan. Governing Through Crime.... New York: Oxford University Press, 2007.
• Western, Bruce. Punishment and Inequality in America. New York: Russell Sage Foundation, 2006.

The Palestinian Struggle & Nonviolence

 

[….] “A consensus has been building over the last few years that the Palestinians need to recover the First Intifada’s model of (largely) non-violent mass mobilisation: a model that led to the recognition of the PLO by Israel, and which was later applied with even greater success in the Arab revolutions. In the early days of the Second Intifada it was almost impossible to speak out against the armed struggle unless you wanted to be called a collaborator. Advocates of non-violence such as Mustapha Barghouti and Hanan Ashrawi, who pointed out that the armed struggle played to Israel’s advantage, appeared to be out of step with the people.

Things have changed now. Suicide attacks on buses and restaurants in Israeli cities made it easier for Israel to equate the Palestinian struggle with jihadi terrorism, and Palestinian society paid a steep price in lives and infrastructure. After the rocket attacks of 2008 more than a thousand Palestinians were killed under Israeli bombardment in Operation Cast Lead – a ‘victory’ Hamas can’t afford to repeat. Mass, non-violent mobilisation, meanwhile, has revealed its power, not just in Tunis and Cairo, but also in Palestinian villages, where local people organised into ‘popular resistance committees’ have been fighting the confiscation of their farmland by settlers and by Israel’s so-called security fence. The popular committees have given people a taste of their own power, and in a few places they have forced Israel to move the wall a little closer to the 1967 lines; the victories are small, and often fleeting, but to Palestinian farmers they make a difference. [….]

If you want to beat Mike Tyson, you don’t invite him into the ring, you invite him to the chessboard,’ Husam Zomlot, the brash young deputy of Fatah’s Department of Foreign Relations, explained to me. ‘On Nakba Day a thousand people marched to Qalandia. Once we manage to get 100,000 people marching there, let’s see what Tyson will do. Will they use a nuclear bomb? Will they use their F-16s?’ Zomlot, who grew up in the Rafah refugee camp in Gaza before studying at Birzeit University and the LSE, talks about strategy as if he were a sports coach. The ‘time of negotiations’, he claimed with obvious (though perhaps premature) relief, is over: even Abbas, he said, has realised that negotiations can go nowhere so long as Israel refuses to reach a deal based on the 1967 borders. Having withdrawn from negotiations, Zomlot continued, the PLO’s plan is to pursue a long-term strategy of non-violent resistance on two parallel tracks: mass protests in villages and at checkpoints and settlements; and diplomatic and economic pressure tactics such as the statehood declaration at the UN and the Boycott, Divestment and Sanctions (BDS) campaign, a movement launched in 2005 by a broad coalition of Palestinian NGOs in the West Bank. BDS, inspired by the boycott of apartheid South Africa, is aimed not only at Israeli products but at institutions ranging from companies that supply weapons to the IDF to – more controversially – universities and cultural organisations; it has attracted increasing support among activists in the West, particularly on university campuses. The Israeli government has responded with a fierce international campaign, claiming BDS is an effort to ‘delegitimise’ the Jewish state; in his speech on the Middle East, Obama adopted the same language.” [….]

Full article: Adam Shatz, “Is Palestine Next?” London Review of Books, Vol. 33, No. 14 (July 2011).

Some Organizations:

• Holy Land Trust: http://www.holylandtrust.org/index.php [Formerly the Palestinian Centre for the Study of Nonviolence, founded by Mubarak Awad in 1985]
• Middle East Nonviolence and Democracy: http://www.mendonline.org/index.html
• Nonviolence Network in Arab Countries: http://www.acnv.net/en/index.php
• The Palestine Center for Conflict Resolution & Reconciliation: http://www.mideastweb.org/ccrr/ 
• Wi’am: Palestinian Conflict Resolution Center: http://www.alaslah.org/ 

Further Reading:

• Abu-Nimer, Mohammed. Nonviolence and Peace Building in Islam. Gainesville, FL: University Press of Florida, 2003.
• Awad, Mubarak. Nonviolent Resistance in the Middle East. Philadelphia, PA: New Society Publishers, 1985.
• Awad, Mubarak E. and R. Scott Kennedy. Nonviolent Struggle in the Middle East. Philadelphia, PA: New Society Publ., 1985.
• Barghouti, Omar. BDS: Boycott, Divestment, Sanctions. Chicago, IL: Haymarket Books, 2011.
• Boulding, Elise, ed. Building Peace in the Middle East: Challenges for States and Civil Society. Boulder, CO: Lynne Rienner, 1994.
• Bronner, Ethan. “Palestinians Try a Less Violent Path to Resistance,” The New York Times, April 6, 2010.
• Crow, Ralph E. Philip Grant and Saad E. Ibrahim, eds. Arab Nonviolent Political Struggle in the Middle East. Boulder, CO: Lynne Rienner, 1990.
• Easwaran, Eknath. A Man to Match His Mountains: Badshah Kahn, Nonviolent Soldier of Islam. Petaluma, CA: Nilgiri Press, 1984.
• Gorenberg, Gershom. “The Missing Mahatma,” The Weekly Standard, April 6, 2009, Vol. 14, No. 28.
• Hiltermann, Joost R. Behind the Intifada: Labor and Women’s Movements in the Occupied Territories. Princeton, NJ: Princeton University Press, 1991.
• Huda, Qamar-ul, ed. Crescent and Dove: Peace and Conflict Resolution in Islam. Washington, DC: United States Institute of Peace, 2010.
• Kennedy, R. Scott. “The Golani Druze: A Case on Non-Violent Resistance,” Journal of Palestine Studies, 13. No. 2 (Winter 1984): 48-64.
• King, Mary Elizabeth. A Quiet Revolution: The First Palestinian Intifada and Nonviolent Resistance. New York: Nation Books, 2007.
• Lawrence, Bruce B. Shattering the Myth: Islam Beyond Violence. Princeton, NJ: Princeton University Press, 1998.
• Munayyer, Yousef. “Palestinian Nonviolence Relies on Global Non-Silence,” The Guardian, May 21, 2010. 
• Nusseibeh, Sari. What is a Palestinian State Worth? Cambridge, MA: Harvard University Press, 2011.
• Paige, Glenn D., Chaiwat Satha–Anand & Sarah Gilliatt, eds. Islam and Nonviolence. Honolulu, HI: Matsunaga Institute for Peace/University of Hawai’i Press, 1993.
• Pal, Amitabh. “Islam” Means Peace: Understanding the Muslim Principle of Nonviolence Today. Santa Barbara, CA: Praeger/ABC-CLIO, 2011.
• Ring, Kenneth and Ghassan Abdullah. Letters from Palestine: Palestinians Speak Out about Their Lives, Their Country, and the Power of Nonviolence. Tucson, AZ: Wheatmark, 2010.
• Said, Abdul Aziz, et al., eds. Peace and Conflict Resolution in Islam: Precept and Practice. Lanham, MD: University Press of America, 2001.
• Salem, Paul, ed. Conflict Resolution in the Arab World: Selected Essays. Beirut: American University of Beirut Press, 1997.
• Salmi, Ralph H., Cesar Adib Majul & George K. Tanham, eds. Islam and Conflict Resolution: Theories and Practices. Lanham, MD: University Press of America, 1998.
• Shulman, David. “Israel & Palestine: Breaking the Silence,” The New York Review of Books, February 24, 2011.
• Stephan, Maria J., ed. Civilian Jihad: Nonviolent Struggle, Democratization, and Governance in the Middle East. New York: Palgrave Macmillan, 2009.
• Zaru, Jean (Diana L. Eck and Marla Schrader, eds.). Occupied with Nonviolence: A Palestinian Woman Speaks. Minneapolis, MN: Fortress Press, 2008. 

See too Dr. Mustafa Barghouthi’s blog.

Gay marriage, bishops and the crisis of leadership

[This editorial, dated July 5, 2011, by the editors of the National Catholic Reporter, is strong and, in my judgment, correct.  I urge you to read it.]

The vote approving same-sex marriage in New York is the latest and most glaring confirmation of some gloomy news for the Catholic church in the United States, and it’s not that gays have achieved the right to marry.

Rather, affirmed in the recent vote is the disturbing reality that the Catholic hierarchy has lost most of its credibility with the wider culture on matters of sexuality and personal morality, just as it has lost its authority within the Catholic community on the same issues. There are reasons -- and they have little to do with secularism, relativism or lingering influences of the wild 1960s -- why people are no longer listening to the bishops.

While we don’t want to minimize the seriousness of the concern of some over a societal redefinition of marriage, there are reasons we think the bishops’ hyperbolic reaction to laws such as that enacted in New York are not only wrong-headed but counterproductive.

First, even if bishops retained the stature they once had in the wider culture, it is evident in polls and politicians’ votes that neither most of the Catholic world nor the wider culture buys the church’s teaching that homosexuals are disordered and are thus relegated to sexless lives in order to remain in the Christian community.

A recent Quinnipiac University poll of registered New York voters found that 70 percent of voters say protestations of the law from religious leaders made no difference in their decision to support or reject it. According to Maurice Carroll, director of the Quinnipiac University Polling Institute, “On gay marriage, many of the people in the pews split with their bishops.”

That attitude does not spring so much from a stance of defiance, as some bishops would assert, but more from the experience of gays and lesbians themselves and their parents and siblings, extended family and friends who increasingly understand gay, lesbian, bisexual and transgendered persons as far more than the sum of their sexual orientation while also understanding that sexuality is at the core of a person’s identity.

To parents of a gay child, the idea that a group of men can claim to know the mind of God so perfectly that they can proclaim with unyielding certainty that God deems a significant portion of creation “disordered” is absurd. The label is not only demeaning but to contemporary Christians has no resonance with the heart of the Gospel.

To be sure, legislative battles are messy affairs. In Albany, the state’s bishops were embarrassingly outmaneuvered by Gov. Andrew Cuomo, a divorced Catholic and parent; by the pro-gay-marriage lobby; and by both Democrats and Republicans. The bishops’ lobbying apparatus is a fangless relic. It is not a formidable opponent to seasoned political operators and elected officials, and it lacks any real threat of reprisal, the currency of politics.

If the bishops actually want laws to reflect Catholic values, they need a new, more sophisticated and potent model of legislative engagement.

Second, even if the bishops had a persuasive case to make and the legislative tools at their disposal, their public conduct in recent years -- wholesale excommunications, railing at politicians, denial of honorary degrees and speaking platforms at Catholic institutions, using the Eucharist as a political bludgeon, refusing to entertain any questions or dissenting opinions, and engaging in open warfare with the community’s thinkers as well as those, especially women, who have loyally served the church -- has resulted in a kind of episcopal caricature, the common scolds of the religion world, the caustic party of “no.”

As if on cue, after the vote Brooklyn Bishop Nicholas DiMarzio declared by fiat that his diocese is “not to bestow or accept honors, nor to extend a platform of any kind to any state elected official, in all our parishes and churches for the foreseeable future.”

In their reaction to the vote, the Catholic bishops of New York wrote: “While our culture seems to have lost a basic understanding of marriage, we Catholics must not. We must be models of what is good, holy and sacred about authentic sacramental marriage.”

The statement might raise legitimate alarms if, indeed, the state law signaled that the Catholic ideals and sacramental life were actually under attack. They aren’t. Nicholas Cafardi has some excellent advice for the bishops (see story [1]) regarding their ongoing battle over same-sex marriage: “We need to give it up. This is not defeatism. This is simply following Jesus in the Gospels, who besides telling us not to act on our fears, also told us to render to Caesar what is Caesar’s and to God what is God’s. Civil marriage is Caesar’s. If Caesar wants to say that you can only get married on Tuesdays, wearing a blue suit and a red tie, that is Caesar’s call. The sacrament of matrimony is God’s. It is valid only when invoked between a baptized man and a baptized woman, in the presence of two witnesses and the spouses’ proper ordinary or pastor or his delegate. Caesar has no say in this.”

The larger problem for the hierarchy, of course, is not persuading the secular culture of its point of view on sacramental marriage, but persuading its own adherents, and particularly young Catholics who now tend to drift off in scores before adulthood, that staying attached to the church is a compelling good, that the church is in fact relevant and will draw them closer to Christ and thus the freedom and fullness of a life of faith.

The bishops have little credibility in the wider culture and diminished authority within the church because in the case of sexual violence against young people by members of their clerical culture, they responded in ways that any reasonable and healthy segment of society would have considered disdainful.

Archbishop Timothy Dolan, he of the wide smile, ready handshake and outsized laugh, was to be the church’s antidote to the cool and distant manner of his predecessor, Cardinal Edward Egan, who was a public relations nightmare from the start. But a love for beer and a hot dog from the cart outside the cathedral will only get you so far.

Dolan’s rising star presumably carries with it a stamp of papal favor. The show “60 Minutes,” in its own hyperbolic burst, dubbed him the “American pope.” And senior NCR correspondent John Allen, who has conducted a book-length interview with Dolan, has written that in other circumstances the archbishop of New York “could easily have been a U.S. senator or a corporate CEO.”

That may or may not be the case, but as senator or CEO, Dolan would be held to standards of accountability that no bishop will ever face. Politicians, we know, can be run out of office and business leaders are held, however imperfectly, to standards of performance and ethics. Some of them land in jail.

In reaction to the marriage vote, Dolan stretched to call up the specter of what remains of the Red menace. On his blog he wrote that in China and North Korea “government presumes daily to ‘redefine’ rights, relationships, values and natural law.” In those countries, he says, government dictates the size of families, who can live and die, and what defines marriage. “Please, not here!” he begs. The comparison, of course, is absurd on its face, a kind of hysteria that demands that someone listen when so few are.

The vote in New York sends a strong message to Catholic leadership. The danger is not in the vote itself. The danger they face is far deeper -- a crisis of leadership and authority for which they have only themselves to blame.

"A Gay Liberationist Looks at Gay Marriage"

[My former student, and now Wake Forest law prof, Shannon Gilreath has posted the following commentary elsewhere. I thought that Shannon's post would be of interest here at RLL:]

Shannon Gilreath is the professor for the interdisciplinary study of law and of women’s and gender studies at Wake Forest University and the author of The End of Straight Supremacy: Realizing Gay Liberation (forthcoming November 2011). In this article, he responds to the recent passage of marriage equality in New York.

I believe whole-heartedly that Gays in New York and elsewhere who choose state-regulated coupling deserve and are constitutionally entitled to all of the same rights as heterosexuals in state-regulated relationships.  In that sense, what happened in New York, the result of tireless efforts by many, is a victory.  And yet I cannot bring myself to celebrate it.  I think it is something of a Chimera, the most recent manifestation of the fantasy gripping the modern “gay rights” movement: that to be like straight people, even when we are in avowed Gay relationships, is the answer to all of our problems.  If we could only be like straight people—look like them, behave like them, love like them—then, so the fantasy goes, we would be valuable.  Perhaps even they might value us.

The debate about the good or ill of marriage for Gay people has been going on for some time. The significance of Radical critique now, in the second decade of the twenty-first century, arises from the near-total capture of the debate by a “gay rights” movement that defines progress in terms of individual exceptionality and – increasingly it seems – overlooks anyone unable or unwilling to assimilate on straight people’s terms. In contemporary gay rights parlance, “equivalence” – in the sense of equivalent access to pre-existing heteronormative institutions – is the same thing as “equality.”  They are, however, not the same thing.  Equivalence is formalism only, while equality is about who gets to make the rules—who gets to define what the good is.

Formal equality transfigures marriage, the institution, into the gateway to ontic happiness and freedom. I find this paradoxical, considering that the history of Gay identity is one of state institutionalization as a means to essentialize and ultimately erase us, first in the prison, then in the psychiatric ward.  Having only recently emerged from this history, some Gays rush to marriage for its value as an institution. Somewhere Foucault is having a good laugh.

Of course, marriage is generally presented as an issue of personal choice and freedom.  But such rhetoric is long on idealism and short on history.  Under patriarchy, society and law have worked to force women into marriage.  Only rhetorically is choice a factor.  What social pressure could not accomplish, legal and economic pressures often have, with marriage resistors being coerced into marriage by the state.  After all, if you need access to healthcare that you can’t afford and that neither your government nor your employer provides you as a basic dignity, then wouldn’t marriage as a form of access seem necessary?  This is reality—hardly romantic in the conventional sense.

To those resistors whom economic and social pressures could not break, the cult of romance turns full-force. The romantic has always been a serious weapon in the war to keep the dynamic of compulsion inherent in the marriage model for women hidden, in which every violation is variously deemed love, or sex, or consent, concealing the compulsion on which the system is based.  This same romantic project seems to work in essentially unaltered form in same-sex relationships.  The named plaintiff in Perry v. Schwarzenneger, Kristin Perry, testified that only marriage could give her a stable relationship.  This is quite remarkable since coupled Gay Californians already had all of the rights and responsibilities as coupled straights.  Perry also believed that only marriage could provide the vocabulary necessary to communicate her relationship with her partner to the world: “I have been in love with a woman for 10 years and I don’t have a word to tell anybody about that.”  It is unsettling that Perry believed that the inaccessibility of “marriage” as a label deprived her of the ability to name her relationship with her partner, recalling Monique Wittig’s observation on the “discourses of heterosexuality” that “prevent us from speaking unless we speak in their terms.”  Gay liberation understands that the problem with appropriating marriage is that access to marriage in its unaltered heteronormativity does not signal a coming to speech for Gay people; rather it signals a subsuming of the Gay consciousness into a thoroughly heterosexual discourse.

Few seem to be asking the question that haunts me: Is marriage good for Gay people, as a people?  After all, the legal entanglement that is marriage is still difficult to get loose from. Economic dependence (which marriage encourages) and the presence of children, coupled with legal strictures that make exit difficult, often keep bad marriages intact. This has been most alarming for women because the marital home is often violent.

But there is strong evidence suggesting that Gay relationships mirror the violence of their heterosexual counterparts.  One study indicates that nearly a quarter of cohabiting Gay men say they were raped and/or physically battered by a spouse or cohabiting partner at some time in their lives, compared to around 7% of men cohabiting with opposite-sex partners.  We know that these numbers are likely the result of underreporting.  In the face of this heartbreaking (and bone-breaking) reality, do we really want to make our relationships harder to get out of than we need to?

And the anti-communitarian nature of marriage puts Gays at risk of violence from outside of our relationships, too. Victims of violence are usually alone and cut off from systems of support. This is one reason that marriage has been so dangerous for women. It may be even more dangerous for Gays.  The respect of patriarchs for one another has generally meant some safety for women in marriage relative to the rest of the patriarchal world. Not so for Gays. Marriage, because it privatizes energies into the family unit, results in the dismantling of support systems found in the community. When Gays recognize other Gays, we often say they are “family.” The movement has abandoned this communitarian conception of family in favor of a heterosexualized, privatized, monogamous family model that is too often isolating.  I think this is dangerous.

Sadly, a very important opportunity is passing us by—the possibility of creating a new way of relating, one not based on patriarchal/heteroarchal notions of sexuality and ownership.  Maybe if we stopped resisting alternative relationship forms, call them civil unions, domestic partnerships, or what you will, some, if not many, enlightened straights would join us.  The frenzy over marriage makes me wonder, again, how effective is the straight socialization that has convinced us that we can only follow, not lead.

When Faith and Law Collide: Revisiting Martin Luther King’s "Letter from Birmingham Jail"

“I agree with St. Augustine that ‘an unjust law is no law at all.’”—Martin Luther King, Letter From Birmingham Jail.

 

The Journal of Law and Religion, located at Hamline University School of Law, cordially invites you to attend the Twentieth Annual Fall Symposium on Friday, September 23, 2011, “When Faith and Law Collide: Revisiting Martin Luther King’s Letter from Birmingham Jail.”  The event will revisit the story behind the composition of “Letter From Birmingham Jail,” the questions it addressed, and the questions it continues to raise. Panelists will include a state senator and former St. Paul Chief of Police, a former mayor of St. Paul, a former Minnesota State District Judge, and faculty from colleges and schools of law in the Twin Cities and across the country.

 

The National Religious Campaign Against Torture

[This, by Sidney Callahan, who is a Distinguished Scholar at the Hastings Center, is from the 6/30/2011 edition of Sightings.]

For many Christians a banner reading “Torture Is A Moral Issue” does not begin to describe torture's inherent evil. Nevertheless when our affluent Roman Catholic parish erected a “Torture Is Wrong” banner on the church lawn, some parishioners complained. This display was considered objectionable because it was “political.”

Polls have shown that more Republican Catholics approve of torture than Catholic Democrats. Fifty percent of Americans think that torture is justified against suspected terrorists “often” and “sometimes,” according to a May 2011 poll by Roper Public Affairs. These results compare with Pew Research Center findings that almost half of Americans, polled since 2004, think torture is justified in order to gain important intelligence information. Half of American Catholics in the Pew data approve of torture, with higher rates of acceptance correlated with frequency of church attendance.

In response, the National Religious Campaign Against Torture was founded in 2006. Their mission is to eradicate use of torture and change attitudes towards it. Enrolled members consist of a broad-based group of religious communities who join in educational programs, petitions and protests. In June an awareness campaign included the display of banners reading “Torture Is Wrong,” and “Torture Is A Moral Issue” outside churches. Other distributed materials and programs seek to provide accurate information to members.

The campaign seeks to inform church members that under the UN Convention Against Torture, signed by the United States, torture is always illegal and forbidden, despite exceptions made under the Bush administration. The UN defines as torture the use of  waterboarding and other cruel Enhanced Interrogation Techniques (EITs). Ironically those who used waterboarding were prosecuted by the US government because waterboarding was considered a war crime when employed by the Japanese in WWII, yet it has admittedly been used by CIA interrogators. Comparable torture techniques used against captured American prisoners in the Vietnam War were also seen to be equally illegal and immoral.

The Compendium of the Social Doctrine of the Catholic Church state that the prohibition against torture is “a principle that cannot be contravened under any circumstance.” This prohibition follows the scriptural teaching of St. Paul who in Romans 3:8 proclaimed that doing evil to achieve good is forbidden. During the Inquisition the Church itself tortured and burned victims’ bodies “for the good of their souls,” a practice now recognized as a sinful violation to be repented. The fact that torture was legal in all European law codes until the reforms of the eighteenth century was no excuse, only compounding the failures of Christendom.

Now NRCAT petitions are directed at Obama and his administration concerning torture in US prisons, and the abuse of solitary confinement. Most crucially, the campaign seeks to publicize the upcoming Senate Intelligence Committee Investigation of CIA interrogation practices. The use of prolonged indefinite detention without trial is also being protested as an abusive practice.

Catholics explicitly affirm that each human is created in the image of God and is an equal member of God’s family. Even more to the point are the words of Jesus Christ when he proclaimed that whateer you do to the least of these human bodies you do to me.  The National Religious Campaign Against Torture calls its member congregations to fulfill their core commitment to compassion by recognizing the primacy of the moral prohibition against torture.

References

Marjorie Cohn, “Torture Is Never Legal And Didn’t Lead Us To Bin Laden,” MarjorieCohn.com, May 13, 2011.

Vincent Iacopino, Scott A. Allen and Allen S. Keller, “Bad Science Used to Support Torture and Human Experimentation,” Science volume 331,  January 7, 2011.

Kenneth R. Himes, "Divided On Torture: How To Build A Public Consensus For The Moral Treatment of Detainees," America, April 18, 2011.

National Religious Campaign Against Torture

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

Should Religious Organizations Be Able to Hire and Fire "Ministers" for Any Reason?

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a disability act case before the Supreme Court implicates some interesting issues though not all of them are before the Court. The issue before the Court is “Whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.” One of the interesting facts of the case is that some of the teachers at the school are not commissioned ministers in the eyes of the Church, but do the same work as the person who is before the Court. Should they also be ministers in the eyes of the First Amendment? (A brief before the Court argues that they should).

More fundamental, should the ministerial exception exist at all. At a recent conference, Caroline Corbin argued that it should not. Among other things, the doctrine arguably necessitates judicial theological determinations as to what counts as a minister (perhaps not if the history of the exception is clear, then the Court would merely be making a historical judgment though possibly one in which some religions are privileged over others).

Even if there were no ministerial exception, surely religious associations should be able to hire or fire their leaders just as other associations can. Ideological associations, for example, can determine their membership and their leaders according to their ideology. To take an extreme example, the KKK need not accept an African American, a Catholic, or a Jew for membership, let alone for leadership. And the Catholic Church has a First Amendment right to refuse to hire women priests because it is a part of its religious doctrine to do so.

Why should the Lutheran church have to keep a minister it does not want to keep in Hosanna-Tabor? On one reading of the facts, the Lutheran church fired the teacher not because of its religious doctrine, but because of a disability in violation of the disabilities act. I emphasize that it is no part of Lutheran doctrine or ideology that the church should do so.

The church also fired the employee for bringing the law suit which is contrary to church doctrine requiring employees to settle issues within the church (Could the Catholic Church fire an employee for reporting sex abuse on the ground that the employee was supposed to keep the issue within the Church – one brief argues that these third party cases are different though I do not see why). It seems to me that government has a compelling interest in enforcing laws against disability discrimination and against sexual abuse interests that outweighs the First Amendment interests in both cases.

If the ministerial exception applies, it does not matter what reason the Church has. It could, for example, discriminate on the basis of race even if it were no part of its doctrine to do so. One difficulty with this approach is that a Court would have to determine what the Church’s doctrine really is, something it has been loathe to do, at least with respect to property disputes where it has resorted to other criteria. On the other hand, courts have considered the sincerity of religious beliefs in many exemption cases and have looked to the religious doctrine of the churches to which the applicant for an exemption has belonged.

In the end, I think that religious associations should stand on the same footing as other ideological associations They should be able to select their leaders and members in accordance with their ideology. But religion should not confer a license to discriminate for reasons that have nothing to do with the religious doctrine of the Church, yet that is precisely what the ministerial exemption confers. 

 

Subsidizing Organizations that Discriminate on Forbidden Grounds

Should government be permitted to condition its subsidies on adherence to non-discrimination conditions? It depends. Government in my view should be able to refuse to subsidize those organizations that discriminate on the basis of race or sexual orientation even if the basis for the discrimination is religious.

It similarly should be able to refuse to subsidize those organizations that discriminate on the basis of religion except for religious organizations. If non-religious organizations discriminate on the basis on religion, there is reason to think the discrimination is odious. If a religious organization engages in such discrimination re membership or re its leaders, the government is foreclosed from thinking that this is odious. This would not necessarily mean government could not draw a line somewhere regarding its subsidies for a  religious organization's religiously-based decisions regarding employment (though it might).

Note that these issues were not presented in CLS v. Martinez which merely held that a law school need not subsidize an organization, religious or otherwise, that was not open to all students.

The Availability Heuristic & The Homeless

 

“Search your memory for the homeless people you saw most recently. What were they like? The unobtrusive homeless person is easily forgotten. We tend to remember the person who sings on the bus, who intrudes on passersby, who is drunk, or is obviously high on some drug. Moreover, we prepare ourselves to behave in certain ways if such a person approaches us, such preparation being exactly the type of ancillary event…that enhances recall of the event leading to it. Hence our view of ‘the homeless’ is based on the memorable homeless, people whose emotional and physical debilitation is so severe that it suggests that poverty alone cannot be the cause of their problems.” [Yet the fact remains that the ‘vast majority of the homeless are poor, just plain poor.’]—Reid Hastie and Robyn M. Dawes, Rational Choice in an Uncertain World: The Psychology of Judgment and Decision Making (2001): 87. 

Image: BBC News, Santa Barbara (2008) - “Santa Barbara boasts a classic laidback California lifestyle, with uncongested beaches, wholesome cafes and charming Spanish-style architecture.” Of course things have considerably worsened since this article appeared.