Category Archives: Commentary

The Conditions in Which Private Groups May Perform Civic Functions

Here’s an insightful post by Paul Horwitz on the Garnett, Inazu, McConnell essay that I commented on a few days ago. Paul introduces his post with a discussion about contemporary attitudes toward government’s “insist[ence] that private organizations comply with its own sense of the good,” and he claims that though many people continue to believe that such insistence is illegitimate, “the momentum” within the elite classes (or call them how you will) “is on the other side.” I am always pleased when Paul shares at least some of my sensibilities.

One more thought connected to Paul’s comment on these interesting matters. Tax exemption for private nonprofit organizations made a certain amount of sense when two conditions obtained: (1) the size of government, and the scope of its role in American social life, was a good deal smaller than it is today, thereby both necessitating and making space for the involvement of private nonprofit institutions for the support of civil society; and (2) the view that these private institutions could and should play an independent role in shaping civil society in accordance with their own senses of the political and moral good, senses that might diverge in important respects from the state’s.

The conditions are mutually reinforcing and mutually dependent. As government becomes larger, both the need and the space for private institutions shrinks as does the perception that private institutions might actually have something of value to say in the way civic formation that is very different from what the state says. The “need” question is complex, because the breakdown of condition #1 would not necessarily mean that we would see fewer private institutions performing the sort of work that they had performed in the past. Indeed, the increase in the size and scope of the government’s role might itself necessitate greater numbers of private institutions to help it fulfill its enlarged offices. But we should expect to see a sharp decline in private institutions engaged in civic formation whose values differed sharply from the government’s. Whatever public/private partnerships endured after the fall of condition #1 could not continue to operate under the premises of condition #2. One might say that this is to be expected–indeed, it might be said to validate a hoary separationist rallying cry: if private institutions want to be in the business of performing civic functions, they ought to expect pressure to conform to the government’s preferred views of the civic, political, and moral good (a footnote: I’m always struck by how decidedly Protestant the theology supporting these kinds of separationist arguments seems). All true, though one could offer in return that such increased pressure is not inevitable but the product of a historical contingency: the breakdown of the two conditions above.

Biblical Intratextualism

Those familiar with some of the schools of constitutional interpretation will know what is commonly called the intratextualist or structuralist method of divining meaning. The idea is to understand the meaning of a word or phrase by searching out and comparing like words or phrases in the same document in order to arrive at a unified meaning. There is a kind of horse-sense fundamental principle sitting somewhere beneath the method: words used at different points in the same document ought to mean the same thing throughout the document, and variations on word usage ought to be understood as signifying difference of meaning. The meaning of the words in the document should render the document a coherent whole. The several usages of “necessary” in the Constitution, for example, are useful in teaching the virtues and vices of intratextualism.

But intratextualism is not just for constitutions. It is a more general approach to extracting meaning from text. Here’s an interesting passage from Robert Louis Wilken’s The First Thousand Years: A Global History of Christianity that describes early developments in Christian interpretation of the Old Testament. This is from the chapter on the great Origen of Alexandria (p.62):

Origen was to spend the rest of his life in Caesarea, and his most mature works were written there, including many of his biblical commentaries. He was the first Christian to write scholarly commentaries on books of the Old Testament, such as Genesis and Psalms, as well as on the New Testament, including the Gospel of John and the Epistles of Paul. Two features stand out in his commentaries: a deep respect, even reverence, for the words of the text, and the conviction that a spiritual meaning could be drawn from every passage of the Bible.

Consider his interpretation of the following passage from the book of Deuteronomy, for example: “If you walk in my statutes and observe my commandments and do them, then I will give you your rains in their season, and the land shall yield its increase, and the trees of the field shall yield their fruit.” (Deuteronomy 11:13-17). Origen begins by putting questions to the text. If “rain” is given as a reward for those who keep the commandments, how does one explain that this same rain is given to those who do not keep the commandments, and “the whole world profits from the common rains given by God”? This leads him to propose that the term “rain” can have another sense than water from the heavens, because in this passage it seems to refer to something that is given only to those who walk in God’s statutes and observe the divine law. It signifies something given “only to the saints.”

With the puzzling use of the term “rain” in the passage as a starting point, Origen proceeds to examine the term “rain” elsewhere in the Scriptures and discovers that it is sometimes used in a metaphorical sense. Moses, for example, said, “May my teaching drop as the rain, my speech distill as the dew” (Deuteronomy 32:1-2). In this passage rain is a metaphor for Moses’s words, and hence of the word of God. That is to say, in the Scriptures “rain” can have another meaning than the plain sense.

Garnett, Inazu, and McConnell on FADA and Religious Nonprofits

very interesting comment authored jointly by Rick Garnett, John Inazu, and Michael McConnell on the recently introduced First Amendment Defense Act. A bit:

Today, tens of thousands of religious organizations, and tens of millions of Americans, continue to believe and teach that the proper understanding of marriage is a union of one man and one woman. But they do far more than believe and teach this and other views.

They also give food, clothing, shelter, counsel, and comfort to millions of Americans in need. They offer some of the most important and desperately needed health, educational, and social services in the country. And they provide billions of dollars and thousands of full-time workers for international relief aid that serves vulnerable migrants, refugees, and persecuted minorities. The work of religious organizations has long been and continues to be central both to religious believers’ lives and to the welfare of others. Our communities—and, indeed, communities around the globe—would be much worse off without these organizations and their faith-informed good works.

Despite the crucial role that religious organizations and individuals have long played in our country, some voices now suggest that they and their work are somehow tainted because of their beliefs about marriage and sexuality. Some argue that the time has come to push religious believers out of the public square and confine them to the quiet, private realm of personal prayer and worship. This despite the Supreme Court’s recent decision in Obergefell v. Hodges, which not only required states to legally recognize same-sex marriages but also said, “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

Nonetheless, because of their traditional views on human sexuality, religious organizations have already been threatened with heavy-handed government action….

Some members of Congress have now introduced the First Amendment Defense Act (FADA) in an effort to ensure that overheated rhetoric and political opportunism do not endanger the important work of faith-based organizations. The core of FADA would require the federal government to honor its longstanding commitments to treat all such organizations with an even hand. It would prevent federal officials from attempting to strip tax-exempt status, from denying equal access to federal facilities and entitlements, or from taking adverse actions related to licensing or accreditation….

We understand that new versions will address many or all of these issues. We think the best approach is to tailor FADA to the core area of concern: religious nonprofits. That focus would serve the cause of religious freedom by making it more likely that this important legislation can move forward.

One thought that has occurred to me on the issue of “tax exemption” of nonprofit institutions is that the entire discussion seems askew. It generally begins from the premise that the government can and should be able to tax anyone and anything that it pleases. The tax base is limitless. Amenability to taxation, however, ought not to be the default posture, as if the government simply gets to decide at its pleasure and election whom and what it wishes to tax. Income taxation only follows from the fact of income generation, and though nonprofits generate income they do not distribute it to individuals for private use but spend it in ways that promote public functions and purposes. Nonprofit actors are not appropriate objects of this kind of taxation at all. Consider, for example, the way in which the Connecticut Supreme Court in an 1899 decision discussed Yale University’s tax exempt status (not an income tax decision, of course):

The non-taxation of public buildings is not the exception but the rule. The corporations, whether municipal or private, which own and are by law charged with the maintenance of such untaxed buildings, are not the recipients of special privileges, in any sense obnoxious to the law. The seats of government, State or municipal, highways, parks, churches, public school-houses, colleges, have never been within the range of taxation; they cannot be exceptions from a rule in which they were never included.

Yale University v. Town of New Haven, 42 A. 87, 91 (1899). These institutions are, as the authors of the piece put it, actors within “civil society” that should in general not be touched by the government’s taxing power. Moreover, a government decision not to tax is emphatically not the same as a government decision to grant money or subsidize. We use the language of “exemption” when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government’s power to tax.

[Update: I’ve amended some things in the post for clarity.]

The Superman Would Laugh at Exams

As we prepare to start a new academic year, the Wall Street Journal‘s Law Blog offers a rundown of some new courses at American law schools:

• At Pepperdine Law School in California, students will search for answers to contemporary problems in the Bible. “Law and the Bible” will explore “how the Bible addresses the challenging legal issues of our day—the breakdown of the family, the death penalty, abortion, poverty, climate change, gay marriage, human trafficking, immigration, and the separation of church and state.”

• At Harvard, students will be seeking advice from Friedrich Nietzsche.“The premise is that provocation by this Master Provocateur may be just the therapy that law students need,” says the description of “Nietzsche for Lawyers,” taught by criminal law professor Richard Parker. There’s no exam, but “soft drinks, wine and snacks will be provided.”

Further comment seems unnecessary.

Krauthammer on Rescuing Syrian Christians

muslims-christians-syria-violence

Syriac Orthodox Christians in Damascus (Russia Today)

A nice piece by Charles Krauthammer in the Washington Post, on the efforts of Lord George Weidenfeld, a British Jew, to save some Syrian Christians. Weidenfeld was himself rescued by Christians in 1938. A British Protestant group brought him to London from Vienna, thus saving him from the Holocaust. Now, he says, he wishes to repay the favor. It’s a small effort, only 2000 families, but it’s something.

Notably, the US Government has declined to participate in Weidenfeld’s efforts, as they target Christians, as opposed to other religious minorities suffering in Syria. No doubt, this reticence comes from the by now well-known American policy of avoiding the appearance of sectarianism in the Mideast. Maybe some people in the Administration even think there would be some sort of Establishment Clause problem with helping Weidenfeld.

Both these concerns are silly. If the US Government were assisting only Christians in the Mideast, that could be a PR problem–for the US and for the local Christians. But the US is helping many religious minorities. Just last summer, it evacuated besieged Yazidis on Mt. Sinjar. So helping Weidenfeld’s group couldn’t be considered favoritism. Anyway, no matter what the US does, it will be seen in the region as a “Christian” power, however ironic that might seem to us here.

As for the Establishment Clause, I don’t know where to begin. Even if the Clause were to apply to such matters, the fact that the US Government distributes foreign assistance to all sorts of religious minorities in the Mideast, not just Christians, would surely satisfy any reasonable neutrality requirement, even the so-called endorsement test. The endorsement test asks whether government action makes non-adherents feel like political outsiders, second-class citizens. Would non-Christians in America really feel like outsiders because some small portion of US aid goes to help a charity rescuing a couple thousand Christian families from war-torn Syria?

The NYT on the End of Mideast Christianity

Egyptian Copts, one holding a Coptic Christian cross, demonstrate against the overnight sectarian violence, in downtown Cairo, Egypt Sunday, May 8, 2011. Christians and Muslims throwing rocks clashed in downtown Cairo on Sunday, hours after ultraconservative Muslim mobs set fire overnight to a church and a Christian-owned apartment building in a frenzy of violence that killed 12 people and injured more than 200. (AP Photo/Khalil Hamra)

 Photo from Christianity Today

Eliza Griswold’s major piece on Mideast Christians in the New York Times Magazine this past weekend is getting lots of well-deserved attention. The Times, more than almost any other media publication, can place items on the national agenda, and both it and Griswold deserve credit for covering the crisis facing Christianity in Syria and Iraq. Griswold makes a couple of mistakes in the article–she incorrectly describes the beliefs of Oriental Orthodox Christians and ascribes the Armenian Genocide to “nationalism, not religion,” when in fact the genocide resulted from both–but, on the whole, it’s a very impressive piece, and well worth reading.

As an American, I was particularly struck by Griswold’s description of how the United States has abandoned Mideast Christians. Really, we are doing next to nothing to help these poor people. “Wait a minute,” someone might object. “How has the US abandoned them? And why do we have to do anything? We’re not responsible for righting every wrong that occurs in the world, and anyway we were in Iraq, trying to help, for years. It didn’t work. Let Iraqis and other local populations settle this for themselves. It’s not worth more American lives.”

I understand the appeal of this objection, but it depends on not a little willful amnesia. Of course, the parties who bear principal responsibility for the persecution of Christians are local Islamists like ISIS. But the US itself bears indirect responsibility. The US invasion in 2003 led to this situation, by creating anarchy and unleashing long-repressed sectarian resentments. And by abruptly leaving Iraq, we have allowed the crisis to intensify. A Catholic bishop Griswold quotes says it well. “Americans and the West were telling us they came to bring democracy, freedom and prosperity. What we are living is anarchy, war, death and the plight of three million refugees.’’ Having helped to create this crisis, the US has a moral obligation to do something to help. We can’t simply abandon these people–and Griswold makes clear that both the Bush and Obama Administrations deserve blame in this–as though we had nothing to do with exposing them to danger in the first place.

As of now, Griswold reports, the US has done very little. (This morning’s announcement of a potential US-Turkish alliance to fight ISIS in northern Syria seems driven largely by Turkey’s desire to preempt Kurdish gains; I doubt most of the region’s Christians hope for much out of it). The US is doing nothing to speed up immigration applications from Mideast Christians, notwithstanding the obvious persecution they are suffering. Even humanitarian assistance has been lacking.

Griswold correctly diagnoses the problem. Mideast Christians have few allies in American politics. Conservatives don’t feel much affinity for Mideast Christians, who often favor Palestine in the Israeli-Palestinian conflict, and liberals have a hard time seeing any Christians as sympathetic victims. As someone once observed, Mideast Christians have the misfortune to be too foreign for the Right and too Christian for the Left.

I hope Griswold’s timely piece can do something to help change America’s response. You can read her whole essay here.

Neutrality Partiality

I have a short essay on the Library of Law and Liberty site involving the idea of religious neutrality when it comes to American public and private education. It was occasioned in part by the Colorado Supreme Court’s recent decision invalidating, pursuant to its state Blaine Amendment, a local program that would have made tuition scholarships available to certain students, which the students could then use to pay to attend private religious and nonreligious schools. I criticize the decision but use it to talk about certain broader issues. Here’s a bit from the conclusion:

Focusing on these details of Colorado law, however, obscures certain larger questions. If “sectarian” truly does mean “Catholic,” and even if it means, as Black’s Law Dictionary says, “of, relating to, or involving a particular religious sect,” then any state Blaine Amendment with this language would be subject to constitutional challenge under the Supreme Court’s free exercise law. “Sectarian” does not sound particularly neutral; or, to the extent it does, it sounds in the rather counterintuitive neutrality of state-endorsed religious hostility. Yet even this perspective on the question of neutrality passes over the colossal non-neutrality of the government’s systematic and exclusive funding of its own putatively religion-neutral schools, to the detriment of able students—many of them from poor and educationally underserved communities—who would greatly benefit from private religious schooling. Neutrality between religion and non-religion seems to demand a plainly partial allocation of resources. Or, one variety of government neutrality—no funding of religious schools—obstructs the achievement of another—educational opportunity.

The question of the place of religion in American educational life—whether in the nation’s public schools or in its position on private religious schools—will not be answered by neutrality talk, for the fundamental reason that nothing in the projects of American education is or ever has been neutral toward religion. From the very first, it was precisely the non-neutrality of the state toward religion that has been one of the prime catalysts of cultural and legal development in American education policy, public and private. There is an understandable tendency among some opponents of state Blaine Amendments such as Colorado’s to reduce them to simple expressions of non-neutral anti-Catholicism. Often they were that, but they were more.

To understand them merely in these terms—as lamentable examples of “discrimination”—domesticates them. It consigns them to a history from which we have happily progressed now that we have entered an epoch in which the making of discriminations of any kind is taboo. It puffs us up with the Whiggish certitude that to repudiate the Blaine Amendments is to rid ourselves decisively of the very real problem they addressed. That problem—how to foster through education the common civic culture upon which the American polity, even still, depends—does not vanish by easy, self-congratulatory resort to the voguish platitudes of antidiscrimination. The Blaine Amendments were woefully inadequate responses to that problem, but responses nonetheless. The empty bromide of religious neutrality is no response at all.

Same-Sex Marriage and Our New Religious Politics

1024px-US_Supreme_Court

Photo from Wikimedia

In the last week, two interesting polls have appeared, one from the Associated Press and the other from the Washington Post, on Americans’ reactions to the Supreme Court’s June ruling in the same-sex marriage case, Obergefell v. Hodges. Taken together, the polls reveal that America is more divided on the question than first appeared. And the polls reflect an unfortunate, new religious dimension in American politics.

Notwithstanding the widespread acclaim for the decision in the days following Obergefell, it turns out that many Americans do not favor making same-sex marriage a constitutional right. In the AP poll, only 39% said they approved of the Court’s ruling, while 41% said they disapproved. In the Washington Post poll, a bare majority, 52%, said they approved the Court’s decision, while 44% disapproved. These results are much closer than one would have expected, given the immediate media reaction to the ruling.

Now, the fact that many Americans disapprove of the Court’s decision doesn’t mean the decision is wrong. Constitutional law doesn’t turn on opinion polls. (As it happens, I think the Court’s opinion is wrong as a constitutional matter, for reasons I explain here). And one must be careful about reading too much into polls, especially polls that follow an unusual recent event. In time, public opinion may settle in favor of the Court’s decision, especially given the fact that younger Americans apparently support same-sex marriage in significant numbers. Besides, people could disapprove of the Court’s decision for reasons that do not directly relate to the merits. Americans are generally in a bad mood about the state of our country these days, and the polls may simply reflect that dissatisfaction.

All that said, these polls seem significant to me, for three reasons. First, they demonstrate that opposition to the Court’s decision is not a fringe phenomenon. Forty-four percent of the country is not an insignificant group. Dissenters may be reticent about expressing their opinion publicly—or, indeed, to pollsters, which suggests the percentage of opponents may be even higher—but they are not a trivial proportion of the population. America is apparently still divided on the question of same-sex marriage, and this division will doubtless make itself apparent in our politics. More on this below.

Second, the results hint that some people who oppose the Court’s decision may do so out of concern for religious freedom. In the AP poll, for example, 56% said that religious liberty should take precedence over gay rights, the implication being that people anticipate a conflict between the two. They should. At oral argument in Obergefell, Solicitor General Donald Verrilli himself acknowledged the potential for conflict, on questions like tax exemptions for religiously-affiliated institutions that oppose same-sex marriage.

Finally, there is an unmistakable partisan divide. In the AP poll, a large majority of Democrats gave priority to gay rights, while a large majority of Republicans said religious freedom is more important. The extent of the divide is truly startling. “By a 64-32 margin, most Democrats said it’s more important to protect gay rights than religious liberties when the two are in conflict,” the AP reports. “Republicans said the opposite, by 82-17.”

This polarization is worrisome. Up till now, America has been spared the bitterness of religious politics. Unlike some countries in Europe, we have not had clerical and anti-clerical parties. True, particular religious groups have gravitated toward one or another political party. In New England, for example, Irish Catholics were historically Democrats and mainline Protestants Republicans, a conflict memorialized in films like John Ford’s The Last Hurrah.

But we have never had secular and religious parties as such. Both parties saw religion, in general, as a good thing, and religious liberty as a fundamental American value. Tocqueville noticed this and found it refreshing. “In the United States,” he observed, “if a politician attacks a sect, this may not prevent the partisans of that very sect from supporting him; but if he attacks all the sects together, everyone abandons him, and he remains alone.”

Perhaps the political consensus on the value of religion is breaking down. More and more, one of our two major political parties is identifying itself as secular, and the other as religious. That’s not to say that all Democrats are secularists and all Republicans religious believers—of course not. Just ask the folks at Secular Right. And people could value religious freedom but believe other interests outweigh it in particular cases. Still, there seems a clear trend: religious freedom is becoming a partisan issue. That’s a very bad thing for America. You might even say it’s un-American. Let’s hope the trend doesn’t continue.

Bill Kristol Interview with Samuel Alito

This item is getting some deserved attention: Bill Kristol has posted a long-form, uninterrupted interview with Supreme Court Justice Samuel Alito on his “Conversations with Bill Kristol” site. I highly recommend it for anyone who wants to know more about the inner workings of the Court and the intellectual debates that have informed American law for the past generation. Justice Alito’s discussion of his dissent in Obergefell, which you can access here, will particularly interest readers of this site. Alito argues that the case represents a return to an unmoored jurisprudence of unenumerated rights, divorced both from constitutional text and national history and tradition. Worth watching.

Greece and the Price of Europe

Alexis Tsipras, head of the anti-bailout Syriza party, speaks during a financial conference in Athens on Tuesday, Dec. 2, 2014.  Tsipras said that Greece’s battered economy could not recover unless the money owed to other Eurozone country’s was cut significantly. The leader of Greece’s popular left-wing opposition says he will demand a massive debt haircut from bailout lenders if his party comes to power in a possible snap election early next year. (AP Photo/Petros Giannakouris)

(AP Photo/Petros Giannakouris)

Last week was a momentous one for the European project. On Monday, the Greek Parliament passed an austerity package that other Eurozone members, especially Germany, had demanded as a condition for considering Greece’s request for an €86 bailout. Negotiations will now begin. How they will end is anybody’s guess.  No one thinks the austerity package itself will solve the economic crisis Greece faces, and pretty much everyone thinks it will lead to years of misery for the nation. Greece already owes creditors an unsustainable €320 billion. But Germany argues that EU rules prohibit any debt reduction for Greece. Perhaps the parties will find a way to extend Greek payments without calling it a debt reduction. I’m sure the lawyers are working on it.

There is plenty of blame to go around. Yes, Greece misled people about the state of its finances when it joined the euro and has spent beyond its means. And the left-wing Syriza government greatly misjudged the mood in Europe and allowed itself to be completely outmaneuvered. But the banks that made the loans should have known Greece was in no position to pay. Having collected their commissions, they passed the debts to national governments–privatized gains and socialized losses–and walked away. As for those national governments, they should have known a common currency without a common fiscal policy was an unworkable proposition. They ignored this truth in pursuit of the illusion of a common Europe, extending from Scandinavia to the Mediterranean and from the Atlantic to the Black Sea. Greece is now paying the price for that illusion.

All this has been said before. But I’d like to draw attention to a small element of the austerity package Greece’s creditors demanded, one that has largely escaped notice. Under the terms of the package, in order to stimulate commerce, Greece will have to repeal its restrictions on Sunday store openings. From now on, nationwide, Sunday will be a shopping day. (Two years ago, Athens allowed Sunday shopping in 10 tourist areas, a move that led to protests). Presumably, Greeks will respond by buying and selling and generally growing their economy. The increased tax revenues will allow Greece to pay some of its debt. And repeal of anti-liberal Sunday closing laws will allow Greece to create a rational European economy, like Germany’s—though, ironically, German stores are closed Sundays.

We Americans are likely to view this matter as trivial. In America, as Robert Louis Wilken once wrote, the only thing that distinguishes Sunday from other days of the week is that the malls open a little later. Besides, a country can’t be pre-modern forever. Sunday closing laws are hopelessly old-fashioned and illiberal. If Greeks want to stay home on Sundays, they can; but people should be able to shop if they want to.  Resistance probably comes from interest groups that oppose free competition.

But Greece isn’t America or Germany, or at least it didn’t want to be, and the reform is indicative of a larger issue. The Sunday closing laws reflected the fact that Greece had values in addition to the market. Greece has had a tradition of Sunday closings to allow people to spend time with family and attend church. (Sure, lots of people watch football instead, but that’s a different matter. Hypocrisy is the tribute vice pays to virtue). The ban on Sunday trading acknowledged that Greece is an Orthodox Christian country, with its own rhythms and ways of life. No matter. In Europe today, if it’s a choice between religious and cultural traditions, on the one hand, and commerce, on the other, commerce wins.  That’s the economically sound choice.

I don’t suppose there’s anything to be done. Greece is in a terrible situation and needs to find a way out. And I know it’s a small matter, compared to the other hardships Greeks will have to bear. But something important is being lost. To be part of the European project, apparently, a country must do whatever it can to become a secular, consumerist, market-oriented place—Sundays included. Localized cultures that stand in the way of economic rationality must recede. Perhaps that’s the inevitable logic of modernity. But it’s not an image the Christian Democratic founders of Europe like Konrad Adenauer and Robert Schuman would have recognized.