Category Archives: Commentary

Walter Russell Mead on Mideast Christians

In the Wall Street Journal, the Hudson Institute’s Walter Russell Mead had a bracing piece on the current crisis facing Mideast Christians. The piece is a version of the remarks he gave at the Hudson Institute conference earlier this month. His advice: Christians must “‘fort up’ or flee.” Here’s his conclusion:

Traditional strategies of accommodation will no longer serve. Christians face stark choices. They can “fort up,” creating defensible and well-armed enclaves that their enemies cannot conquer. They can flee, as millions have already done. Or they can wait to be massacred.

In the modern Middle East, the minorities that have survived, and in some cases thrived, have acquired a military capacity. The Jews, the Kurds, the Armenians, the Maronites and the Druse have not all created states, but they have all built redoubts. The Maronites (Lebanese Christians in communion with the Roman Catholic Church) and the Druse (a monotheistic religion distinct from both Christianity and Islam) both entrenched themselves in the mountains of Lebanon and built militias that have allowed them to survive recurring bouts of civil war.

Other communities have chosen the path of flight. Almost all the Jews of the Arab world now live in Israel. More Armenians and Circassians live outside their ancestral homelands than in them. Many Assyrian and Chaldean Christians already live in the West, and Copts and other Christians have been escaping in a steady flow.

The conscience of the West has been slow to wake to the peril of the dwindling minorities of the Middle East (including non-Christians such as the Yazidis, as well as the persecuted Baha’i of Iran and the Ahmadis of Pakistan), but Islamic State is changing that. In the wake of its atrocities, Pope Francis and, in the U.S., church leaders like New York’s Cardinal Timothy Dolan are speaking up.

This is a very good thing, but advocates for the Christians and other endangered Middle East minorities must think hard about the available options. We must choose from among three courses of action.

We can help the region’s minorities “fort up,” as the Israelis, Kurds and Maronites have done. We can help them to escape and work with friends and allies around the world to help them find new homes and start new lives. Or we can do what history suggests, alas, as our most probable course: We can wring our hands and weep piously as the ancient Christian communities in Syria and Iraq are murdered, raped and starved into oblivion, one by one.

Read the whole thing here.

Movsesian Essay on Genocide at Liberty Law Site

For those who are interested, the Library of Law and Liberty has published my essay, We Remember the Genocide–And We Must Avert Another. In the essay, I draw parallels to the Armenian Genocide of 1915 and the persecution of Mideast Christians today:

Religiously motivated violence against Christians is not a new phenomenon. The attitudes classical Islam fosters—that Christians are vaguely alien dhmmis who can be tolerated as long as they remain subservient, but who forfeit protection if they assert equality or cooperate with outsiders—played an important role in 1915 and do so today. Again, most Muslims today do not endorse these attitudes, and other factors are involved, too. But to dismiss religion as a major factor in the current violence is to close one’s eyes to reality.

To read the full essay, please click here.

Fewer Christians, More Nones

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Image from Patheos

That’s the takeaway from the latest Pew survey of American religion, released with great fanfare this week. The percentage of Americans who describe themselves as Christians has dropped sharply, by nearly eight percent since the last analogous Pew survey, in 2007. Most of the decline comes from mainline Protestant denominations and the Catholic Church. The percentage of Americans who call themselves Evangelicals has stayed roughly the same.

A corresponding increase has occurred in the number of Americans who say they are religiously unaffiliated–the so-called “Nones.” In the 2007 survey, roughly 16% of Americans described themselves as unaffiliated. Now it’s about 23%, a seven percent rise. When one looks at younger Americans, the numbers are even more stark. More than one-third of Millennials say they are religiously unaffiliated. The younger Americans are, the more they have checked out of religious institutions.

Some argue that surveys like Pew’s overstate the percentage of American Nones, and I’m curious what sociologists will say about these numbers. But the trend is clear, at least for the moment. A significant and growing percentage of Americans are detaching from organized religion, especially from the historically important mainline churches. A minority of American Nones–a growing number, according to Pew–describe themselves as atheists or agnostics. But the majority of Nones do not have problems with belief as such. They reject, or are at least indifferent to, the claims of organized religion. They are the so-called “spiritual but not religious,” or, perhaps “religious indifferents.”

A few quick observations. First, it seems unlikely that these new Nones have had sudden, reverse-Damascus Road experiences in the last several years. I suspect many of the new Nones already had weak commitments to their religious institutions–or, in the case of Millennials, commitments that never really formed–and now have dropped out completely. Church membership confers less social status than it used to do–in some settings, it confers negative social status–and the marginal probably feel more comfortable cutting their ties completely. So the decline in genuine religious attachment is probably not as precipitous as the Pew numbers would suggest.

Second, one often hears that Christianity’s identification with conservatism explains the Nones. People, especially the Millennials, don’t care for conservatism, and so avoid conservative Christian churches. But it’s precisely the liberal churches that have experienced the greatest decline in the last several years. Plus, George W. Bush has been out of office for six years, during which time we have had a president who touts his liberal Christianity on many occasions. If it were just about politics, you would expect the liberal Christian churches to be gaining ground. But they’re falling further behind. Perhaps the association with conservatism is so profound and odious that people don’t want to be affiliated even with liberal Christian churches. Whatever the explanation, the political dynamic seems to be complicated.

Finally, it’s hard to see how the rise of the Nones is good for religious freedom. As people check out of organized religion, they are less likely to view it as important and worthy of protection. People with even marginal affiliations may still understand and endorse the importance of religious commitment. The fact that they affiliate at all shows that religion makes up at least some part of their identity. Once people cut their ties completely, however, they are much less likely to be sympathetic to religious communities. If the future of religious freedom depends on the ability of believers to persuade our fellow citizens that faith commitments deserve respect and protection, that task may well become more difficult in the years ahead.

Greve on “The Bob Jones Rule”

I was going to post on one particular exchange between Solicitor General Verrilli and Justice Alito in yesterday’s oral argument in the same-sex marriage case, but Professor Michael Greve’s post is a better read than what I can come up with. A bit:

Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?

Solicitor General Verrilli: You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that.

That answer is about as straightforward and committal as you’ll see from an experienced lawyer. It’s curious because the Solicitor General had excellent reasons to deny the point and to deflect the question. His task was to assuage worries about what the Court is being asked to do here and to script the justices’ forthcoming press release (formally known as “the opinion for the Court”): that’s not what this means. And he had a million ways of making reassuring noises. It’s not some complicated legal case, for Pete’s sake: all Mr. Verrilli needed was to argle-bargle for the remaining five minutes of friendly colloquy about First Amendment values, competing dignities, the arc of history, and the meaning of life. In short, Verrilli made the concession not because he had to; he volunteered it. Why?

Because if the tax exemption jazz becomes “an issue,” it’s decided the minute gay marriage becomes the constitutional baseline. Because everyone knows that. Because the LBGT folks already have those complaints and briefs in their drawers, to be filed (almost “certainly”) on July 1.  And because DoJ and the IRS and OCR, in their last remaining eighteen months in office, are in a hurry to roll over to their constituencies and to hammer the hold-outs, in meticulous observance of the law. A hallmark of this administration. Or maybe they’ll hand out waivers.

I don’t deny that” says “dare me. It’s not going to hurt me in this case, and I’ll plant a flag for the next cases.” Mr. Verrilli could have coasted; instead, he waited for his opening to push further. A heck of a lawyer, at his considerable best.

The Merchants of Venice

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Photo Courtesy of Gianmario Guidarelli

I’ve enjoyed Nate’s posts this month on the importance and benevolence of the market as a human institution. The market can indeed promote tolerance, cooperation, and peace, to say nothing of wealth. And its importance in our culture only increases. The market continues to expand its reach, governing many aspects of life we once thought beyond it. A few decades ago, prenuptial agreements were void as against public policy. Courts would not enforce agreements in contemplation of divorce. Now, prenups are routine. There are many other examples.

As the market expands, it seems inevitable that competing commitments will shrink, at least as a matter of public life. Religion may be among these commitments. In fact, as Nate explains, reducing religion’s hold on people may have been the point all along. Voltaire, for example, anticipated that the expansion of commerce would cause religious commitment to atrophy. People would come to see the market, not the church, as important, and identify as buyers and sellers rather than believers. After all, in the marketplace, it doesn’t matter whether one is a good Christian, Jew, Muslim or pagan. All that matters is whether one can pay.

In the passage Nate quotes, Voltaire offers eighteenth-century London as the model of a benevolent, religiously indifferent, commercial society. (Voltaire overstated things. In 1780, two years after he died, London was convulsed by the vicious, anti-Catholic Gordon Riots, in which mobs terrorized the city for days while Londoners huddled inside their homes, afraid to face them. “Such,” Johnson observed, “is the cowardice of a commercial place.”) When one thinks of the prototype of a mercantile society, though, one usually thinks of another city a thousand miles away. It’s Venice, more than any other place, which conventionally epitomizes the commercial society.

I’ve been thinking a great deal about Venice, lately, ever since I visited last month to participate in an international law and religion moot court competition. In its glory, Venice was a city devoted to commerce. Just as in today’s New York, you could find anything for sale. The city pioneered credit-financed capitalism and grew fabulously wealthy on trade with Byzantium and the Levant. And, as Voltaire’s theory would suggest, the Venetian Republic was quite tolerant of religious difference, especially for the time. The city had significant colonies of Eastern Christians like Greeks and Armenians; Lutheran Germans; Muslim Turks; and of course Jews. All made fortunes trading peaceably in Venice.

And yet, as I learned, Venice had a compensating commitment to tradition. The city balanced devotion to the fluid world of commerce with an equal devotion to the static world of custom. As Peter Ackroyd explains in his marvelous book, Venice, Pure City (2009), Venice was “the most conservative of societies.” In law and government, ancient usage had preeminent authority, more than positive legislation. Social interactions followed patterns that did not change. For example, strict rules limited what different classes could wear. Patricians wore stiff black gowns, which highlighted gravity and authority, not flexibility and cosmopolitanism. In architecture, generation after generation followed old models. When buildings collapsed, Venetians would reconstruct them exactly as they had been, often using the same materials. Come era, dove era.

And Venice was exceptionally religious. The city’s enthusiastic participation in the Crusades is well known, and was always a matter of great pride. One could dismiss Crusading as a search for more loot, but for Venetians it was more than that. Venetians were genuinely devout, perhaps excessively so. Hundreds of churches shared a very small space; religious processions were numerous and frequent.  Reports of miracles were common; only Rome had more. This is not to say that Venetians were saints. They never lost sight of the main chance. But Catholicism was a centerpiece of their identity. Ackroyd sums it up best: “Machiavelli wrote that ‘we Italians are corrupt and irreligious beyond all others.’ That was not true of the Venetians. They were corrupt and religious.”

The commitment to tradition was brought home to me when I was visited the famous basilica of Santa Maria della Salute on the Grand Canal. The basilica was built in the seventeenth century to commemorate the Virgin’s help in ending one of the periodic plagues that struck Venice. As architectural historian Gianmario Guidarelli explained to me, at the very center of this church, there is an inscription (above) that captures the Venetian understanding of life: Unde Origo Inde Salus, “Where is the Origin, There is Salvation.” The inscription refers to the legendary founding of Venice on March 25, the Feast of the Annunciation to the Virgin in the Western calendar. But I think the inscription must allude more generally to the saving power of the past. Salvation doesn’t come from novelty or change. To preserve the city, one must return to history, to ancient customs, to the origins. You can’t get more traditional than that.

With their dual commitment to markets and tradition, the merchants of Venice held the gorgeous East in fee. The state they created, the Venetian Republic, lasted for more than a thousand years. In the West today, we have kept and expanded markets, but seem ever more eager to jettison tradition. I wonder how long we’ll last.

The (Anticipated) Depth of Progressive Skepticism Toward Religious Freedom

Nate writes: “I think, however, it is also possible that once it becomes clear that priorities on gay marriage and antidiscrimination laws are not threatened that progressive hostility to religious freedom will wane. I don’t know if this is the case, but it seems possible that really there is nothing deeper going on here than gay marriage and antidiscrimination laws.”

I see things a bit differently. But at least part of the difference may be the result of definitional uncertainties. I’m not sure what Nate means to include within the compass of antidiscrimination laws. I’m more certain of the sorts of harms to personal dignity that antidiscrimination scholars do see at the heart of those laws. And I’m even more certain of what Nate rightly describes as the ambitions of Justice Kennedy, especially in the jurisprudence of dignity that has animated his opinions over the last 25 years or so (from substantive due process all the way to state sovereign immunity). As I put it in this essay (footnotes omitted):

The issue of symbolic or “dignitarian” harm is particularly problematic. If perceived affronts or injuries to one’s personal dignity constitute a “significant” or “material” harm to a third party, then it is difficult to see how many permissive religious accommodations could survive. Laws reflect morally and politically charged messages. Whether the subject is education, public health, drugs, sexuality, commerce, prisons, insurance, the environment, or the military, laws embody particular moral convictions and impose, even if tacitly, particular moral views on those subject to them. Religious accommodations are decisions by the government to permit limited dissent from these moral messages. In accommodating religious objectors, the state might be perceived not merely to authorize limited disagreement with the law, but to countenance disrespect for the moral views underlying it or even for the moral dignity of those who are its intended beneficiaries. But if the state comes to have powerful legal interests in remedying symbolic or dignitarian offenses, then that may well render many permissive religious accommodations illegal….

A leading antidiscrimination scholar has likewise noted that the prevention of harms to “dignity” and the stigmatization of discrimination are two of the three “canonical” functions of antidiscrimination laws generally. Religious accommodations, it is said, have the power to “stigmatize and demean” those who disagree with the religious claimant’s dissenting position on these matters, even when such objections are “not stated explicitly.” The feeling of being “judged” by those who raise religious objections to certain conduct, and the indignity of knowing that the state has countenanced that judgment by permitting a religious accommodation, may themselves be independent harms….

The government’s vindication of third-party dignitary harms has the potential to destroy religious accommodation. The core function of religious accommodations, again, is to authorize limited, but sometimes socially powerful and politically controversial, dissent from the law’s moral messages. There is an important difference between dissent from a law’s moral message and the denigration or vilification of the law’s intended beneficiaries. “Hate the sin, love the sinner,” is the Christian aphorism sometimes used to express this distinction, but it has proved elusive and generally unpersuasive (or worse) to those whose dignity is felt to be injured by claims for religious accommodations. A government that assumes the power to confer dignity on individuals may also subject itself to legal claims by individuals whose dignity has been harmed as the deprivation of an entitlement. And there is reason to worry that the legal conferral of dignity is expanding, as the Supreme Court increasingly justifies its constitutional jurisprudence based on ever-thickening concepts of human dignity. Lurking just beneath these dignitarian clashes are bottomless mysteries concerning the foundations of human identity—religion or sex? higher duty or worldly satisfaction?—that, one may anxiously hope, neither the Supreme Court nor any other government institution will ever assume the power to resolve.

Perhaps in the end the issue is not so much “progressive skepticism” toward religious freedom as “progressive aspirations” for antidiscrimination law–not the winning back of progressives to the cause of religious liberty (or even to its toleration), but the damage to religious liberty that the ever-expanding scope of antidiscrimination law portends.

Thomas More, Villain

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Anton Lesser as Thomas More in Wolf Hall (BBC)

When it comes to up-market historical fiction, nobody delivers like the Tudors. There’s so much entertainment value in that Renaissance dynasty: royalty; costumes; cool accents; lust and murder; political and religious intrigue; the works—plus enough history to make you feel virtuous for watching. In the 1930s, studios turned out films like The Private Life of Henry VIII and Fire over England, which, for my money, still has the best portrayal of Elizabeth on film, by the great British actress Flora Robson. In the 1960s, there was Anne of the Thousand Days. Forty years ago, PBS broadcast Elizabeth R and The Six Wives of Henry VIII. More recently, there was Showtime’s The Tudors. And now on PBS’s Masterpiece there is Wolf Hall, a BBC dramatization of Hilary Mantel’s 2009 novel.

All historical fiction involves anachronism, of course, and depictions of the Tudors often reveal more about contemporary issues than they do about the past. Robert Bolt’s A Man for All Seasons portrayed Thomas More as a liberal dissenter from state ideology, a man committed to individual conscience and the rule of law. (In the 1960s, liberals identified with such people). Glenda Jackson’s 1971 portrayal made Elizabeth an icon for the rising feminist movement.

I was able to catch an episode of Wolf Hall on Sunday, and it seems to me the new series likewise reflects our current cultural moment. Maybe I spend too much time thinking about these things, but to me it is impossible to miss the allusions to current debates about rational government and religious belief. The message, for religious liberty, is not a congenial one.

Wolf Hall—which, incidentally, has great production values and wonderful performances, especially by Damian Lewis as Henry VIII—inverts the conventional portrayal of the Henrician Reformation. Most past film and television versions, even those sympathetic to Henry, show More as a kind of hero, a noble, if misguided, martyr for freedom of conscience. In Mantel’s version, by contrast, it’s Cromwell, the supporter of state orthodoxy and More’s tormentor, who is the hero. And More, the man who resisted the state from religious conviction, is the unalloyed villain.

Now, More was a more complicated figure than widely understood. Even saints have failings. He may have been, as Swift famously wrote, “a person of the greatest virtue this kingdom ever produced,” but, as chancellor, he persecuted Protestants and approved burning heretics at the stake. Mantel’s portrayal goes beyond offering a helpful corrective to the conventional wisdom, though. Her More is not deeper or truer to the historical record. He is simply evil, a nasty piece of work—cold, fanatical, and sadistic.

Mantel’s Cromwell, by contrast, is warm, self-effacing, and pragmatic, even wistful—a family man, though with a ruthless edge. As between him and More, he is easily the more reasonable. Religious enthusiasm is not for him; he is far too insightful and levelheaded. He is also more compassionate. When More tells him that torture is for the victim’s own good—the real More forcefully denied that he ever tortured anyone—Cromwell is aghast. Cromwell is far too tender-hearted to believe something like that. He cannot bear to see someone burned at the stake for heresy. More, we gather, would be delighted.

I know nothing about Mantel’s politics. Perhaps her choices in Wolf Hall are purely aesthetic. Maybe she set herself the artistic challenge of portraying Cromwell, one of British history’s great villains, in a favorable light. But I’m guessing she has an agenda. Increasingly, secular liberals are losing patience with claims for religious liberty, particularly from traditionalists who dissent from progressive orthodoxy. Only fanatics could object to progressive goals like the Contraception Mandate and same-sex marriage, they believe, and it’s wrong to accommodate such people. Accommodation encourages backward and malevolent attitudes that cause innocent people grave harm.

In its biased portrayal of More, British history’s great example of religious resistance to state orthodoxy, Wolf Hall is sending its audience a message: Don’t think this man was at all admirable. He was a dangerous head case. And, by extension, be careful of his analogues today, who continue to oppose religious fanaticism to tolerance, reason, and progress. Cromwell, and pragmatic people like him who protect us from the forces of reaction, are the real heroes.

It’s a powerful message, and one with increasing influence. Perhaps this explains why PBS is advertising Wolf Hall as “a historical drama for a modern audience.” The fact that this hatchet job on Thomas More appears in an impeccably well-done BBC production—surely the gold standard in upper middle class entertainment—shows how fast our culture is changing, and how much work defenders of religious liberty have before them.

Pope Francis on the Armenian Genocide

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Pope Francis Greets Armenian Apostolic Patriarch Karekin II on Sunday (NYT)

Last Sunday in Rome, Pope Francis celebrated a Mass in St. Peter’s Basilica to commemorate the 100th anniversary of the Armenian Genocide, an ethnic cleansing campaign that took place at the end of the Ottoman Empire. In the course of a two-hour liturgy in the Armenian rite, and in the presence of the Armenian Catholic patriarch, patriarchs of the Armenian Apostolic Church, the president of the Republic of Armenia, and many Armenian pilgrims from around the world, Pope Francis made what should have been an entirely uncontroversial statement. The Armenian Genocide, he said, quoting his predecessor Pope St. John Paul II, “‘is generally referred to as the first genocide of the twentieth century.’”

The essential facts are well known. Armenian Christians made up a significant percentage of the population in the Ottoman Empire’s eastern provinces. For a few decades, there had been unrest. In religious and political reforms known as the Tanzimat, the Ottomans had formally granted equal status to Christians and Muslims. Equality for Christians caused a backlash among Turkish Muslims, though, and oppression of Armenians and other Christians continued, particularly in the countryside. Armenian paramilitary groups began to resist. When World War I began, the Young Turk government worried that these groups would side with Christian Russians. So it decided to solve the “Armenian Question” once and for all by deporting the entire Armenian population from Anatolia to Syria, through the Syrian desert. Deportation through a desert, without adequate protection or supplies, is obviously a recipe for mass extermination. And that is what happened. Historians estimate that 1.5 million Armenian Christians perished, under horrible conditions, in the death marches and slaughters. The enormities are well documented.

Nonetheless, the Turkish side refuses to acknowledge what happened as genocide, denying that there was any plan to eliminate Armenians from Anatolia, while also arguing, inconsistently, that the Armenians were a potentially disloyal population and that the Ottomans had a right to do what they did. Besides, they say, many Turkish Muslims also suffered and died in World War I—surely true, but a non-sequitur. Because of Turkey’s sensitivities on the subject, and because of geopolitical realities, many Western governments, including our own, dance around the issue. When running for office, President Obama promised that he would officially recognize the Genocide, a promise he immediately broke as president. So Pope Francis’s forthright statement—even if he was, in fact, only quoting a predecessor, who was in turn referring to a general consensus—was remarkable, and praiseworthy. (The words on paper don’t capture the tone of the pope’s remarks. Watch this video of the event from Rome Reports. Francis is not simply reading from a text. He obviously means every word of it).

In response, Turkey has condemned the pope’s remarks as religious hatemongering and recalled its ambassador from the Vatican. The repercussions will no doubt continue. Yesterday, Turkey’s minister for European affairs suggested the pope had been brainwashed by the Armenian community in Argentina. Today, Turkish President Recip Erdogan reacted in rather personal terms. According to the English-language Turkish Daily News, Erdogan–who actually has gone farther than many Turkish leaders in acknowledging the suffering of the Armenians in 1915–said the pope’s remarks were characteristic of a “politician” rather than a religious leader. “I want to warn the pope to not repeat this mistake and condemn him,” Erdogan said.

In his remarks, Francis correctly linked the Armenian Genocide to the persecution of Mideast Christians generally—100 years ago, and today. Religion was not the only factor in the Genocide, of course, but it had a major role. Armenians who converted to Islam were often spared; some of their descendants still live in Turkey today. Many Armenians died as Christian martyrs; indeed, the Armenian Apostolic Church will canonize these victims of the Genocide at a ceremony in Armenia this month. Moreover, as the pope told the crowd at St. Peter’s, the Genocide struck not only  the “Armenian people, the first Christian nation”—here the pope is referring to the fact that Armenia was the first state to adopt Christianity as its religion, in 301 A.D.—but also “Catholic and Orthodox Syrians, Assyrians, Chaldeans and Greeks.”  In all these communions, “bishops and priests, religious, women and men, the elderly and even defenseless children and the infirm were murdered.”

In addition, as everyone knows, the persecution of Christians in the Middle East continues today. The pope referred to these new martyrs as well: “Sadly, today too we hear the muffled and forgotten cry of so many of our defenseless brothers and sisters who, on account of their faith in Christ or their ethnic origin, are publicly and ruthlessly put to death – decapitated, crucified, burned alive – or forced to leave their homeland.” Many Christian communities in Syria and Lebanon took in the refugees of 1915, saving their lives, giving them a place to raise their children and preserve their faith. Now those communities themselves are the victims of ethnic and religious cleansing. To whom shall they go?

In an insightful column, Walter Russell Mead argues that Pope Francis’s remarks show that he has decided to raise the rhetorical stakes in the crisis facing Christians in the Mideast. Up till now, the Vatican has taken a “‘softly, softly’” approach to the conflict, so as not to endanger the lives of vulnerable Christians still there. Outside intervention often makes things worse for Mideast Christians, after all. But how much worse can things get? Mideast Christians face extinction.

Today’s Turks are not responsible for what their ancestors did 100 years ago. God willing, Turks and Armenians will one day be able to reconcile in a way that honors justice. Acknowledging the truth about what happened to the Armenians is a start. Meanwhile, drawing attention to the Armenian Genocide may be a way to mobilize the world to save suffering Christians now—before it is too late.

Shiffrin on Progressive Preference for Speech Over Religion

Professor Steve Shiffrin is an enormously thoughtful scholar of the First Amendment. He is a constant and welcome reminder to me that alignment in political views is in the end rather minor indeed in the greater scheme of scholarly affinity and insight. My own work has been very much influenced by Steve’s even as his politics and my own differ in various ways.

Steve has a smart post on the religious accommodation controversy. In it, he picks up a theme that has characterized some of his work on the Speech Clause–that is, its arguably indefensible modern scope. He writes:

Why do liberals value freedom of speech over freedom of religion? Why should the state tolerate hate speech on the basis of sexual orientation (not to mention race)? If permitting some religious individuals the ability to discriminate against gays and lesbians in the purchasing of products and services is a stigmatizing denial of equality, how much more stigmatizing is virulent hate speech? In addition, however difficult it might be for many liberals to muster any empathy for the evangelical Christian who feels a religious obligation not to serve gays or lesbians, the explicitly homophobic hate monger is surely worthy of substantially less respect which is to say – no respect.

Some liberals will say that the hate speech example involves speech, and discrimination is conduct. But speech is conduct, as is defamation, most forms of fraud, and perjury. Other liberals will say that in the area of free speech, we do not take the value of speech into account. This is true much of the time, but there are exceptions (obscenity, fighting words, commercial speech, near obscene speech, and private speech) and there should be more of them (depictions of animal cruelty targeted to sadists or masochists, gruesomely violent video games). Why shouldn’t this be one of the exceptions? Note these are the same liberals who believe that equality on the basis of sexual orientation should be a Constitutional right. In other words, they believe that homophobia like racism should be renounced in our Constitution. Of course, everyone should have a right to question the wisdom of our constitutional rights, even the equal protection clause, but that should not implicate a right to stigmatize and libel citizens on the basis of sexual orientation (or race).

It’s an interesting set of questions. For more on the reasons for the decrease in broad American social investment in religious freedom by comparison with free speech, see Part IV of this paper (and in particular my friendly wager with Professor John Inazu about whether it is, or is not, only a matter of time before the Speech Clause suffers a similar fate).

Indiana and Doux Commerce

Amidst the often disappointingly vacuous cacophony over Indiana’s recently passed RFRA legislation, Jacob Levy, a political philosopher at McGill, raised the fascinating question of how we ought to think about the relationship between religious freedom and commerce.

Levy raises two sets of concerns with Indiana’s law, one of which is largely illusory and one of which merits serious thought. The illusory concern is that the Indiana RFRA is a radical innovation that by applying the compelling state interest test to private causes of action threatens to undermine the basic legal infrastructure – property, contract, and tort – of the market.

It’s important to remember that we have decades of experience applying some version of the compelling state interest test to religious claims. We have the nearly three decades from Sherbert to Smith as a matter of constitutional law, and then the more than two decades from the passage of RFRA to the present as a matter of federal statutory law. Beginning in the mid-1990s some states began passing their own RFRAs, and during this entire period numerous states applied some version of the compelling state interest test as a matter of state constitutional law. If antinomian chaos were going to break forth one would think that after a half century it already would have happened.

In terms of concrete conflicts between RFRAs and basic private law, it seems to me that the most dangerous ones would be cases involving bodily harm or the invasion or destruction of property. I think that in cases involving bodily integrity, courts would have no problem saying that the state had a compelling government interest in protecting bodily integrity and in providing recourse to those suffering bodily injury. I think that for most property cases, we can dispose of them by saying that property law places no substantial burden on religious exercise. Saying that you have to build your sukkah on in your yard rather than my yard is not a substantial burden. There might be issues if we have a property owner who for some reason owned religiously significant land, as has been the case with some Native American claims against the federal government. Depending on the facts, I am not convinced that chaos would result if we granted an exemption from certain rules of property law. To give an analogy, lots of private property owners have land that contains graves. In many states there is a common law doctrine granting descendants an easement on the land to visit the graves. The market has not been threatened.

His rather fanciful legal concerns aside, however, Levy raises a deeper issue, one that deserve far more attention that it has received. His concern is with the way in which allowing religious believers to claim exemptions from otherwise applicable laws might inject the question of religious identity into commerce.  He quotes Voltaire’s famous statement of the doux commerce argument:

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There thee Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.

Voltaire’s insight – one he shared with thinkers such as Montesquieu and Adam Smith – was that markets are more than simply a mechanism for organizing economic production. They are also moral and political institutions that structure relationships and inculcate certain moral habits. For the eighteenth-century apologists for commerce, the effect of markets in this area was largely beneficent. They allowed those of very differing religious convictions to peacefully cooperate and tended to inculcate habits of tolerance and, if not respect, at least peaceful co-existence.

Levy suggests that by allowing religious people to claim exemptions from the demands of contract or property, RFRA statutes might undermine this order. As explained above, I think that this is the wrong thing to worry about. The scope of anti-discrimination laws, however, does raise this issue. As near as I can tell, Levy himself favors rather narrow antidiscrimination laws on largely libertarian grounds. What happens, however, when we apply the doux commerce argument itself to the question of antidiscrimination laws?

Normally we think of contract as structuring relationships in the market. Antidiscrimination laws, however, deprive certain market participants of the ability to avoid contracting. This raises two questions. First, does such forced contracting undermine doux commerce by replacing contractual norms with non-contractual equality norms, or does it enhance doux commerce by requiring people to trade across tribal and religious boundaries? Second, when thinking about religion in our society, how desirable is the Royal Exchange of Voltaire? On one hand it tends to promote tolerance and peacefully mediate religious pluralism. At the end of the day, however, Voltaire was no great friend of religious faith and for him one of the great attractions of commerce was the corrosive effect he hoped that it would have on religious communities, which he wished to see submerged in the universal, secular identity of citizenship.