Category Archives: Commentary

Removing Christmas (and Everything Else) from the School Calendar

Here’s a lesson in how to irritate everybody. Last week, the Board of Education in Montgomery County, Maryland, a wealthy suburb of Washington, DC, voted to remove references to religious holidays from its public school calendar. Starting next year, students will have off for “Winter Break” rather than Christmas, “Spring Break” rather than Easter, and two unnamed holidays rather than Rosh Hashanah and Yom Kippur. The decision came after a Muslim group requested that schools also close for a Muslim holiday, Eid al-Adha. Rather than declare Eid a holiday, the board decided to remove religious references altogether.

The board apparently believed that retaining the names of religious holidays is constitutionally problematic. That is not so. Naming school holidays after widely celebrated religious observances does not violate any of Supreme Court’s many Establishment Clause tests, even the so-called endorsement test. Consider Christmas, for example. Closing on December 25 does not endorse the religious meaning of the holiday. It simply acknowledges the fact that most students and staff would stay home. And as everybody, including the state and federal governments, refers to the holiday as Christmas, it’s natural for the school calendar to do the same. In fact, expunging the word “Christmas,” after it has been in the calendar for so long, suggests hostility to the religious meaning of the holiday. Such a suggestion itself creates problems under the endorsement test.

What about the fact that the schools recognize the holidays of some religions, but not others? Doesn’t that suggest hostility for religions the schools ignore? Obviously some Montgomery Country Muslims took it that way, and one must respect their feelings. But there’s a very good administrative reason why Montgomery County schools don’t close on Eid. Only about 1% of the county’s population is Muslim. There are simply not enough Muslim students and staff to justify closing the schools–just as there are not enough Hindus to justify closing schools on Hindu holidays, or Buddhists to justify closing schools on Buddhist holidays. That’s not a reflection of disrespect for those religions, but an acknowledgement of demographic reality. It’s worth noting that the Montgomery County schools excuse absences for Muslims who observe Eid.

I could explain why the other Establishment Clause tests also would allow schools to close for some religious holidays but not others, but there’s no point belaboring things. The Constitution does not require what the board did. But the board’s decision is worse than wrong; it’s pernicious. Striking the names of religious holidays has only served to create religious conflict. Many Christians and Jews have expressed dismay, as has the Muslim organization that requested the Eid holiday in the first place. That organization now worries, not implausibly, that angry parents and students will blame Muslims for the board’s decision. That would be unfair. The organization didn’t ask the board to rename these other holidays; that was entirely the board’s doing. But many people will ignore that fact.

In a pluralistic society like ours, respect is a crucial value. Respect for religious traditions other than one’s own promotes harmony and social peace. But recognizing a religious holiday that many students and staff observe doesn’t express disrespect for other religions, and the board’s decision to rename Christmas–as well as the other holidays–has done nothing to promote religious harmony. The board has created an entirely unnecessary, uncomfortable situation in which everyone feels aggrieved. One could hardly call that progress.

Common Law Constitutionalism: The Meaning of Establishment Circa 1800

In this post, I speculated about the possibility that the meaning of “establishment” might be illuminated by the English experience of the term before the Constitution’s drafting. The idea would be to understand “establishment” not by reference to a fixed meaning traceable to the founding, but instead by reference to a general, but not limitless, range of meanings in use as a matter of the common law experience antedating the Constitution. That range might have a core and a periphery, and while the periphery, it is true, might change over time, any changes would be very gradual and always intimately connected with the historical common law meanings of establishment.

Our Center board member, Don Drakeman, helpfully points me to a different kind of common law evidence–uses of the term establishment in state courts after ratification of the Constitution. He argues that a shift was occurring in the meaning of the term during this period: from a narrow meaning limited to what Thomas Curry has called a meaning “modeled on the Anglican establishment in England,” to a broader meaning covering the issue of general assessments for funding churches. The former meaning would suggest a “sect preference” approach to the issue of establishment, while the latter would not.

In his book, Church, State, and Original Intent (at pages 216-229), Don describes the different post-First Amendment views in Massachusetts and New Hampshire circa 1800 about the meaning of establishment as expressed in three court cases—Avery v. Tyringham (1807), Barnes v. Falmouth (1810), and Muzzy v. Wilkins (1803).

Tyringham concerned Article III of the 1780 Massachusetts Constitution, the preamble of which at that time stated that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and [that] these cannot generally be diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality.” Based on that rationale, the Massachusetts Constitution goes on to authorize towns “to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion and morality.” But Article III also provided that “no subordination of any one sect or denomination to another shall ever be established by law.” The opinion of Justice Theodore Sedgwick (who also served as a member of the First Congress that adopted the Establishment Clause) concluded that in these “strong and energetic” provisions “the religion of Protestant Christianity is established. Liberty of conscience is secured.” (emphasis in original) That interpretation suggests that the sort of explicit public support for Protestant Christianity contemplated by the Massachusetts Constitution does constitute an establishment, even though Massachusetts never had an expressly authorized or designated official church establishment.

In a later Massachusetts case, Barnes v. Falmouth (1810), Justice Theophilus Parsons considered whether the minister of an unincorporated church could share in taxes raised under Article III. Justice Parsons wrote that the case provided an occasion to “consider the motives which induced this people to introduce into the constitution a religious establishment, the nature of the establishment introduced, and the rights and privileges it secured to the people, and to their teachers.” Here is Don’s description of the opinion:

According to Chief Justice Parsons, the rationale for an establishment is based on the fact that “[c]ivil government…availing itself only of its own powers, is extremely defective”; accordingly, “the people of Massachusetts…adopted and patronized a religion, which by its benign and energetic influences, might cooperate with human institutions, to promote and secure the happiness of its citizens.” Fortunately, he writes, “the people were not exposed to the hazard of choosing a false and defective religious system. Christianity had long been promulgated, its pretensions and excellences well known, and its divine authority admitted.” In particular, “This religion, as understood by Protestants, tending, by its effects, to make every man…a better husband, parent, child, neighbor, citizen, and magistrate, was by the people established as a fundamental and essential part of their constitution.” Pointing out that there is “liberty of conscience” for all, “whether Protestant or Catholic, Jew, Mahometan or Pagan, the constitution then provides for the public teaching of the precepts and maxims of the religion of Protestant Christians to all the people.” It is, therefore, “the right and duty of all corporate religious societies, to elect and support a public Protestant teacher of piety, religion, and morality.” Unincorporated churches could not share in taxes raised under Article III, concluded Parsons; otherwise, which teacher to be supported depends “exclusively on the will of a majority of each society incorporated for these purposes.”

221-222. Don argues that Justice Parsons’s description of this arrangement as an “establishment” shows that some Massachusetts jurists believed that the town-by-town assessments for Protestant teachers were themselves believed to be establishments. It is an interesting question whether the assessments themselves, or instead the assessments only as part of the general, if unofficial, privileging of Protestant Christianity as the civic religion, is really what Justices Parsons and Sedgwick are describing as an “establishment.” The latter possibility might narrow the meaning of establishment somewhat: the privileging of Protestant Christianity by all of the means described by these Justices in the Massachusetts Constitution—including the assessment scheme—comes perhaps closer to the meaning of establishment as “official” privileging than does a meaning which considers assessments favoring religion alone as an establishment.

A third piece of evidence can be found right over the border among some Justices in New Hampshire, where, Don writes, “at about the same time, a distinguished jurist who was a member of the Second through the Fifth Federal Congresses made a point of saying that the Granite State’s town-based general assessment tax system for the support of Protestant ministers, which was quite similar to the Massachusetts approach, was clearly not an establishment of religion.” 223

The issue arose in the 1803 case of Muzzy v. Wilkins, where Chief Justice Jeremiah Smith “considered whether a Presbyterian was entitled to an exemption from the town taxes in support of the Congregational church under New Hampshire’s constitution, which empowered the legislature to authorize the towns of the state to make provision for public protestant teachers of piety, religion, and morality.” According to Chief Justice Smith, the assessment system alone did not constitute an establishment: “No one sect is invested with any political power much less with a monopoly of civil privileges and civil offices. All denominations are equally under the protection of the law, are equally the objects of its favor and regard.”

Chief Justice Smith’s is that rare opinion where a judge actually provides a definition of an “establishment”: “A religious establishment is where the State prescribes a formulary of faith and worship for the rule and governance of all the subjects.”

This definition, it is true, is narrower than what can be discerned from the general approach in the two Massachusetts decisions. But New Hampshire’s state constitution at the time did not (so far as I know) contain the sort of language unofficially, but quite explicitly, privileging Protestant Christianity as was the case in Massachusetts. It might be that it was this general privileging (even if unofficial, and to include, in Massachusetts, state assessments) that was thought by both Massachusetts and New Hampshire jurists to constitute “establishment.”

At any rate, it would be worthwhile, as well as interesting, to explore the range of common law meanings of establishment before ratification of the First Amendment as well. As Don says in the book, it would probably be impossible to arrive at a single fixed meaning. But it might well be possible to reach consensus about a general range or spectrum of meanings, with core or uncontested meanings graduating outward toward peripheral or contested ones.

Rappaport on Common Law Constitutionalism

Professor Michael Rappaport has a really neat post about common law rights that are constitutionalized, and how one should interpret such rights. The post is particularly interesting for me because in my constitutional theory seminar, we are in between two classes that consider, respectively, the role of tradition and historical practice in constitutional interpretation, and the relationship between precedent and interpretive theory. But as Professor James Stoner has shown, there are many textual features of the Constitution that use terms rooted in common law understandings. What are the interpretive possibilities in such cases; what happens to a common law right that has been constitutionalized? Rappaport sets out 3 options:

1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.

2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.

3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.

It is not surprising that Professor Rappaport ends up opting for choice #3, because this choice maps neatly on his general interpretive defense (with Professor John McGinnis) of original methods originalism! See the post for his reasons. What is of special interest to me is the extent to which the Constitution depends upon common law terminology and common law ideas. For this, you really can’t do better than Professor Stoner’s work. But I suspect there is much more to be done in that area. In fact, sometimes I wonder whether anybody has ever reviewed the English experience with the term “establishment of religion” in the centuries before the Constitution’s drafting (surely someone has).

Kobani, Then and Now

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Kobani, Syria, Last Weekend

For the past several weeks, the world has been watching Kobani (in Kurdish, Kobanê), a small city on the Syrian-Turkish border. In September, militants from ISIS, the Sunni Islamist group that has declared a restored caliphate in the Middle East, laid siege to the city, which is mostly Kurdish and currently in the hands of the YPG, a Syrian Kurdish group that opposes the Assad government. Kobani’s strategic significance is debatable, but the city has symbolic importance, and its fall would be a huge morale boost for ISIS. Consequently, the US has instituted a bombing campaign to push ISIS back. As of this weekend, the siege was at a standstill.

A bewildering set of parties is involved. In addition to the two main antagonists, ISIS and the YPG, there are the Iraqi Kurds – who, unlike the YPG, do not have good relations with the PKK, the Kurdish militants who seek to establish a homeland in Turkey – the Free Syrian Army, part of the “moderate” secular opposition to Assad; the Assad regime itself; the Iraqi government; regional powers like Turkey and Iran; and the international anti-ISIS coalition, led by the US. Each of these parties has its own interests to protect, which makes cooperation very difficult. Most observers think the city will fall unless outsiders supply substantial ground troops. That seems unlikely. Although Turkey last week said it would open its border and allow some Iraqi Kurdish fighters, as well as members of the Free Syrian Army, to reinforce Kobani, it’s not clear whether that will occur.

One group that does not have a significant representation in Kobani is Christians. This is ironic, because Kobani was in fact founded by Christians during the last great wave of persecution in the region, about 100 years ago. In the wake of the Armenian Genocide of 1915, an ethnic-cleansing campaign that killed millions of Armenians and other Christians in the Ottoman Empire, Armenian refugees established a village near a recently-built train station on the Baghdad Railway, at a place called Ayn al-Arab in the Aleppo Province. The Kurds came later and called the village “Kobani,” apparently after the German company that had built the railway.

The Turks pushed many of Kobani’s Armenians further south. Those who avoided deportation built churches and schools in Kobani, but most eventually decided to move on, to other cities in Syria or to Soviet Armenia. Doubtless, many of them wished to leave a place with so many bad memories. According to political scientist Cengiz Aktar of the Istanbul Policy Center, the area surrounding Kobani is known as “‘the Armenian cemetery’ because of the thousands of Armenians who died there during the deportations. It was a terrible place when the Armenians arrived back then, and the area has a tragic history. It is being repeated now.”

Hardly anyone today remembers the Christian presence in Kobani. I didn’t know the story, myself, until a friend said his grandfather, one of the refugees, once had a shop there. The churches are gone. New humanitarian disasters succeed the ones of 100 years ago; history moves on. Still, it’s worth pausing to reflect on the great suffering that led to Kobani’s foundation, and the great suffering that continues there now. It will have blood, they say. Blood will have blood.

Photo from CNN

Gray on the Ubiquity of Evil

John Gray has a long, superb essay on the subject (h/t L. Joseph), with scathingly acute criticisms of the modern sense in which evil is eminently conquerable through (of all things) politics, or really doesn’t exist, or must somehow be the result of somebody’s mistake, or could be cleared up as a simple matter confusion. Particularly keen are Gray’s comments about the way in which the old religious traditions offer certain insights on the matter, insights that are today largely either ignored or disbelieved. Read it all, including this:

It’s not that [most western leaders] are obsessed with evil. Rather, they don’t really believe in evil as an enduring reality in human life. If their feverish rhetoric means anything, it is that evil can be vanquished. In believing this, those who govern us at the present time reject a central insight of western religion, which is found also in Greek tragic drama and the work of the Roman historians: destructive human conflict is rooted in flaws within human beings themselves. In this old-fashioned understanding, evil is a propensity to destructive and self-destructive behaviour that is humanly universal. The restraints of morality exist to curb this innate human frailty; but morality is a fragile artifice that regularly breaks down. Dealing with evil requires an acceptance that it never goes away.

No view of things could be more alien at the present time. Whatever their position on the political spectrum, almost all of those who govern us hold to some version of the melioristic liberalism that is the west’s default creed, which teaches that human civilisation is advancing – however falteringly – to a point at which the worst forms of human destructiveness can be left behind. According to this view, evil, if any such thing exists, is not an inbuilt human flaw, but a product of defective social institutions, which can over time be permanently improved.

Paradoxically, this belief in the evanescence of evil is what underlies the hysterical invocation of evil that has lately become so prominent. There are many bad and lamentable forces in the world today, but it is those that undermine the belief in human improvement that are demonised as “evil”. So what disturbs the west about Vladimir Putin, for example, is not so much the persecution of gay people over which he has presided, or the threat posed to Russia’s neighbours by his attempt to reassert its imperial power. It is the fact that he has no place in the liberal scheme of continuing human advance. As a result, the Russian leader can only be evil. When George W Bush looked into Putin’s eyes at a Moscow summit in May 2002, he reported, “I was able to get a sense of his soul”. When Joe Biden visited the Kremlin in 2011, he had a very different impression, telling Putin: “Mr Prime Minister, I’m looking into your eyes, and I don’t think you have a soul.” According to Biden, Putin smiled and replied, “We understand each other.” The religious language is telling: nine years earlier, Putin had been a pragmatic leader with whom the west could work; now he was a soulless devil.

It’s in the Middle East, however, that the prevailing liberal worldview has proved most consistently misguided. At bottom, it may be western leaders’ inability to think outside this melioristic creed that accounts for their failure to learn from experience. After more than a decade of intensive bombing, backed up by massive ground force, the Taliban continue to control much of Afghanistan and appear to be regaining ground as the American-led mission is run down. Libya – through which a beaming David Cameron processed in triumph only three years ago, after the use of western air power to help topple Gaddafi – is now an anarchic hell-hole that no western leader could safely visit. One might think such experiences would be enough to deter governments from further exercises in regime change. But our leaders cannot admit the narrow limits of their power. They cannot accept that by removing one kind of evil they may succeed only in bringing about another – anarchy instead of tyranny, Islamist popular theocracy instead of secular dictatorship. They need a narrative of continuing advance if they are to preserve their sense of being able to act meaningfully in the world, so they are driven again and again to re-enact their past failures.

Many view these western interventions as no more than exercises in geopolitics. But a type of moral infantilism is no less important in explaining the persisting folly of western governments. Though it is clear that Isis cannot be permanently weakened as long as the war against Assad continues, this fact is ignored – and not only because a western-brokered peace deal that left Assad in power would be opposed by the Gulf states that have sided with jihadist forces in Syria. More fundamentally, any such deal would mean giving legitimacy to a regime that western governments have condemned as more evil than any conceivable alternative. In Syria, the actual alternatives are the survival in some form of Assad’s secular despotism, a radical Islamist regime or continuing war and anarchy. In the liberal political culture that prevails in the west, a public choice among these options is impossible.

There are some who think the very idea of evil is an obsolete relic of religion. For most secular thinkers, what has been defined as evil in the past is the expression of social ills that can in principle be remedied. But these same thinkers very often invoke evil forces to account for humankind’s failure to advance. The secularisation of the modern moral vocabulary that many believed was under way has not occurred: public discourse about good and evil continues to be rooted in religion. Yet the idea of evil that is invoked is not one that features in the central religious traditions of the west. The belief that evil can be finally overcome has more in common with the dualistic heresies of ancient and medieval times than it does with any western religious orthodoxy.

There follows an interesting discussion of Manicheanism and the views of Augustine, and then this:

In its official forms, secular liberalism rejects the idea of evil. Many liberals would like to see the idea of evil replaced by a discourse of harm: we should talk instead about how people do damage to each other and themselves. But this view poses a problem of evil remarkably similar to that which has troubled Christian believers. If every human being is born a liberal – as these latter-day disciples of Pelagius appear to believe – why have so many, seemingly of their own free will, given their lives to regimes and movements that are essentially repressive, cruel and violent? Why do human beings knowingly harm others and themselves? Unable to account for these facts, liberals have resorted to a language of dark and evil forces much like that of dualistic religions.

The efforts of believers to explain why God permits abominable suffering and injustice have produced nothing that is convincing; but at least believers have admitted that the ways of the Deity are mysterious. Even though he ended up accepting the divine will, the questions that Job put to God were never answered. Despite all his efforts to find a solution, Augustine confessed that human reason was not equal to the task. In contrast, when secular liberals try to account for evil in rational terms, the result is a more primitive version of Manichean myth. When humankind proves resistant to improvement, it is because forces of darkness – wicked priests, demagogic politicians, predatory corporations and the like – are working to thwart the universal struggle for freedom and enlightenment. There is a lesson here. Sooner or later anyone who believes in innate human goodness is bound to reinvent the idea of evil in a cruder form. Aiming to exorcise evil from the modern mind, secular liberals have ended up constructing another version of demonology, in which anything that stands out against what is believed to be the rational course of human development is anathematised.

The Obama Effect?

President_Barack_ObamaIn The American Interest this week, sociologist Peter Berger has a provocative essay on the controversy over the City of Houston’s demand for sermons several pastors have delivered on the topics of homosexuality and gender identity. Berger says the roots of the controversy lie in the Obama Administration’s disregard for religion. He makes a powerful point, but I wonder whether he overstates things.

The City of Houston’s demand came in the form of subpoenas in a lawsuit over a petition to repeal a city anti-discrimination ordinance. As I explained in an earlier post, the city’s demand was outrageous, even given the freewheeling standards of American litigation, and the city has in fact narrowed its request. Some smart observers think this “narrowing” is just a publicity stunt. In my opinion, the new subpoenas, which ask only for communications that relate to the petition and ordinance themselves, stand a better chance of surviving. We’ll see how the court rules.

But leave aside that narrow, procedural matter for now. Here’s a more important question. Why did the city issue the offensive subpoenas in the first place? America has a long tradition of respecting religion, and the idea that government would demand to know what pastors were saying in their own churches should have set off all kinds of alarms. We don’t do that sort of thing in our country.

Berger says the episode reflects America’s decreasing regard for religion and religious believers. And he lays the blame largely at the door of the Obama Administration:

This episode in the heart of the Bible Belt can be placed, first, in the national context of the Obama presidency, and then in a broad international context and its odd linkage of homosexuality and religious freedom. I’m not sure whether President Obama still has a “bully pulpit”; at this moment even close political allies of his don’t want to listen to his sermons, if they don’t flee from the congregation altogether. All the same, every presidency creates an institutional culture, which trickles down all the way to city halls in the provinces. This administration has shown itself remarkably tone-deaf regarding religion. This was sharply illuminated at the launching of Obamacare, when the administration was actually surprised to discover that Catholics (strange to say!) actually care about contraception and abortion. Eric Holder’s Department of Justice has repeatedly demonstrated that it cares less about religious freedom as against its version of civil rights. Perhaps one reason for the widespread failure to perceive this attitude toward the First Amendment is that Barack Obama is seen through the lens of race–“the first black president”. I think a better vision comes through the lens of class–“the first New Class president”–put differently, the first president, at least since Woodrow Wilson, whose view of the world has been shaped by the culture of elite academia. This is evident across the spectrum of policy issues, but notably so on issues involving gender and religion.

Now, there’s much in what Berger says. The Obama Administration has shown little enthusiasm for religious freedom. True, the Administration  intervened recently to protect a prison inmate’s right to wear a 1/4-inch beard for religious reasons. But in the two major religious freedom cases of its tenure, Hobby Lobby and Hosanna-Tabor, the Administration created obstacles for religious freedom in needlessly inflammatory ways. It insisted on the Contraception Mandate, even though it knew the mandate would gravely trouble some Christians and even though alternatives existed that could have given the Administration most of what it wanted. It accepted compromise only grudgingly and litigated the case to the bitter end. And in Hosanna-Tabor, the Administration argued that the Religion Clauses had nothing at all to do with a church’s decision to select its own minister–a position a unanimous Supreme Court rejected as “remarkable.”

Still, when it comes to a declining respect for religion in America, I’m not sure the Administration is a cause so much as an effect. Perhaps its actions reflect a broader cultural shift to secularism. Most likely, there is mutual reinforcement. A growing cultural secularism, embodied, for political purposes, in the Democratic Party, contributed to the President’s election; and the President’s election in turn has contributed to a growing secularism. This growing secularism leads many people to view religion–traditional religion, anyway–with antipathy. And that antipathy leads to things like the Houston subpoenas. It’s a vicious circle–or virtuous one, I suppose, depending on your view of things.

Also, it’s not clear things are so bad for traditional religion now, or that they were so good before. As Yuval Levin wrote recently in First Things, religious conservatives seem to have overestimated their cultural ascendancy during the Bush Administration–so did their opponents, as I recall; remember those cartoon maps of “Jesus Land”? –and may underestimate their influence today. According to a recent Pew survey, almost 50% of Americans think churches and houses of worship should express their views on political and social issues, an increase of six percent since 2010. Three-quarters of the public think religion’s influence in our national life is declining–and most of those people think it’s a bad thing. If anything, the Obama Administration seems to be contributing to a pro-religion backlash.

Well, these are complicated issues. Berger’s essay is very worthwhile. You can read the whole thing here.

The Synod on the Family and the Developing World

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First World Problems?

Not long after his election, the new Pope explained why he had taken the name “Francis”: “Ah, how I would like a church,” he said, “that is poor and is for the poor.” It was refreshing: the Pope was going to change the basic terms of the conversation between the Church and the world. Instead of waging a grinding “culture war” against a secular West, the Church would instead speak to the most urgent concerns of the global East and South. The first Pope to come from beyond Europe and the Mediterranean basin promised to be the champion of those who lived in the parts of the earth where hunger, injustice and persecution abounded. Places like the Philippines, Mexico, and Nigeria had already become the true center of gravity of a global Church, displacing Quebec, Chicago, Milan and Vienna. The new Pope would speak for the populations of the emerging world – for their suffering, their desperation, their resilience, their energy, their sense of hope. The “North/South” polarity would supplant the “Left/Right” one. The Church would make the pivot to poverty. In making that turn, it would address the West too – but by awakening it from the deadly self-absorption of the affluent.

So when one learns that the Synod of Catholic cardinals and bishops summoned by the same Pope has returned the conversation to the culture wars of the West – though with unmistakable overtones of capitulation on many of the bishops’ part — it is, to say no more, a disappointment. Try as it may, the Church under Francis seems to be unable to resist scratching the sores of Western sexuality. The consuming obsessions of the West, now in the terminal phases of the sexual and cultural revolutions that have swept over it for more than half a century, are dominating the Church’s agenda once again. At the Pope’s insistence, the bishops did a reset, plunging the Church into renewed debate over divorce and homosexuality and cutting short the conversation that the Pope had earlier invited over famine, persecution and want. With Islamist terrorist groups like Boko Haram recently murdering 2500 Catholics in one Nigerian diocese alone, and with Christian children being crucified or cut in half by ISIS, you might think that the world’s bishops would have more pressing things on their mind than the compatibility of same-sex unions with Church teaching. You would, of course, be wrong.

Indeed, even considering “family” issues alone, the non-Western Church was short-changed: how much attention was given to the question of inter-faith marriages, despite its being a major concern for the Church in India? In the Philippines, many marriages break up because poverty forces a spouse or parent to migrate overseas in search of employment, leaving home, spouse and children behind. Philippine Cardinal Luis Tagle noted this problem, saying that poverty “goes right at the heart of the family” in his country ; but how much attention did this issue get?

What is more, the organizers of the Synod openly expressed their indifference to – if not contempt for – the opinions of the leaders of the non-Western Church. They spoke as if the opposition of the African bishops to their “modernizing” program could stem only from irrational hatred and prejudice. What the Africans needed, they seemed to be saying, was a good, stiff dose of Richard Posner’s writings. In the controversy over the initial draft of the Synod’s statement, Cardinal Walter Kasper, an octogenarian German theologian and a favorite of the Pope’s, infamously said:

Africa is totally different from the West. Also Asian and Muslim countries, they’re very different, especially about gays. You can’t speak about this with Africans and people of Muslim countries. It’s not possible. It’s a taboo. For us, we say we ought not to discriminate, we don’t want to discriminate in certain respects.

Kasper later denied having made those revealing remarks – a denial that was then proven to be false. In any case, the remarks hardly seemed out of character for the Cardinal. In an interview with the German magazine Focus published under the heading “Third World Land,” Kasper was reported to have said, “When you land at Heathrow you think at times you have landed in a Third World country.” The German Cardinal obviously notices different things when he is at the airport from what Cardinal Tagle does. The Philippine prelate spoke of his anguish in watching Filipino mothers at airports forced to part from their children because their poverty is so desperate that they must leave their families and search for work abroad.

Not Just Cardinal Kasper

Even if Cardinal Kasper’s statement were merely condescension on the part of the passenger with the first-class cabin towards the passengers in steerage, it would be bad enough. But Kasper and those like him simply did not seem to understand the position. Perhaps the Africans and Asians are not just squinting narrowly at the issue of homosexuality, but rather looking at the state of Western culture as a whole? And perhaps they do not like what they see? Perhaps the cultural exports of the secular West – its current practices regarding marriage, abortion, childbirth, the family, the relations between the sexes – are no more wanted in Africa and Asia than the West’s toxic wastes and sewage effluents? (New York Cardinal Dolan’s wonderful defense of the “prophetic” African Church effectively made these points. )

But the problem with the Synod went far beyond the tactlessness and incomprehension of elderly European churchmen. Apparently at the Pope’s insistence, the Synod’s final report included three controversial articles that had received the approval of a Synod majority, but not the supermajority required for consensus. The final report will now go to the Church throughout the world for discussion and debate before the Synod reconvenes. You can be sure that the media coverage of the debate in this intervening period will focus overwhelmingly on the articles that the Pope reinstated. Cui bono? In their effort to get the conversation back on the familiar tracks of the Western culture wars, the Pope and his bishops are doing serious harm to millions of faithful Catholics trying to live out the Gospel in hostile and often dangerous conditions in the emerging world.

My former student, Andrew Ratelle, makes the point forcefully:

By upholding the nuclear family, the Church made what was perhaps the most important social investment in history. People in the poorer, more pagan regions of the world where polygamy, polyandry, arranged and child marriages were common, now had a place to look for support when it came to building a life that was most beneficial for themselves and their children. By weakening this support, or at the very least dispersing it to include more “diverse” arrangements, these bishops have weakened the very shield from which the nuclear family has received so much protection. Even in our own country, where “diverse” familial arrangements have almost become synonymous with urban poverty and crime (at least for those who have no gilded safety net to fall into), where should families look to now, since the Church has seen fit to dilute the medicine they have thrived on for so long?

Church leaders in the developing world understand this perfectly well. South African Cardinal Wilfrid Napier, for instance, wondered how he could deny communion to an African man living in polygamy in accordance with local culture and tradition, if he had to administer the sacrament to a divorced man married to his second wife? “Successive” polygamy, Napier pointed out, is hardly distinguishable from “simultaneous” polygamy.

Pope Francis was right (at first): it really is time to change the conversation. The global Church is not the parochial Western Church; the Church of the poor and the marginal is not the affluent, greying Church of Western Europe and North America. The Church should not be shadowing the West’s cultural trajectory all the way downwards. The future of the Church lies elsewhere. Ex oriente, lux.

Photo from the Catholic News Agency.

More Questions on the Significant Harm to Third-Parties Establishment Clause Theory

In my last post on the subject, I wondered why there had not been more discussion on the part of advocates of the Significant Harm to Third-Parties Establishment Clause theory (abbreviated for convenience hereafter as SHTEC) regarding the application of that theory to the prison-beard case, Holt v. Hobbs. As Rick Garnett notes, the application of SHTEC theory to both Hobby Lobby and Holt v. Hobbs was recently addressed by Nelson Tebbe, Micah Schwartzman, and Richard Schragger. I will rapidly pass over the characterizations of the existing doctrine, as Rick discusses some of this and I’ve talked about it before, except to observe that whatever virtues SHTEC theory may have, its status as an “established principle of constitutional law” seems an improbable one. As I have explained before, SHTEC theory represents a major extension of current law. I also read the Hobby Lobby vote breakdown differently. If Justice Kennedy really accepted SHTEC theory, and believed that third-party rights in Hobby Lobby would have been violated by an accommodation for Hobby Lobby, then it is confusing to me that he would have joined the Court’s footnote 37. But he did join it (and of course he also said some very nice things about Justice Ginsburg).

On the application of SHTEC theory to Holt v. Hobbs, and to RLUIPA prison cases generally, I have some additional questions. My principal difficulties are terminological. I am having a hard time understanding what constitutes “significant” or “substantial” harm to “third party interests” and how that standard works in tandem with the RLUIPA standard.

First, the standard of significance seems elusive to me. With a slight tweak of the facts, maybe this becomes clearer. Suppose that the prison had a “No hair on the face or head longer than 1/4 inch” policy. And suppose it had evidence that exactly one person (or two, or five) had hidden a shank or a SIM card in their hair. What is the relationship for SHTEC purposes between frequency of harm and gravity of harm? Are one or two such instances enough to be “significant” because the gravity of the threatened harm is so great? Whatever one may think of the harm to third parties in Hobby Lobby, that harm is less grave than the third party harm I am positing (assuming one can agree that harm to life is graver than harm to access to employer-paid contraception), but of course the number of incidents of harm is greater in Hobby Lobby than in my modified Holt v. Hobbs hypo. SHTEC theory advocates can respond that Holt v. Hobbs didn’t deal with any of that. And so what is really going on is a failure of evidence. That’s fine, but that side-steps the issue. I’m less interested in the particular state of the evidence here than in understanding how SHTEC theory would apply in even a slightly more difficult prison case (surely these would fruitfully multiply after a favorable ruling for the prisoner in Holt v. Hobbs).

Second, I have difficulty with the distinction between third-party harms and government/state harms. Is there such a sharp difference? Or is it in the end all harm of various kinds to the state (that is to say, harms of multiple and varying kinds to the rest of us who are not being accommodated)? It may be some evidence in favor of the latter that there have been no separate SHTEC claims brought in the context of RFRA or RLUIPA actions. Everything has been analyzed pursuant to the statutory standard. Again, that’s because third party harm might be a kind of compelling interest that ultimately constitutes a state interest under RFRA or RLUIPA. Whether it rises to that level will depend on just how severely it burdens third parties (as Caldor put it, those accommodations which “take no account” of third parties are going to be in hot water). But notice what happens if one layers a SHTEC claim on top of the RFRA/RLUIPA compelling interest standard. Now it seems that third party harm claimants are on an equal footing with religious claimants. Religious claimants must allege a substantial burden; third party claimants can then allege a contravening “significant” burden; with the result that the government need not accommodate the religious claimant, and can circumvent its obligations to come forward with a compelling interest, by pointing to the SHTEC theory violation that would result from religious accommodation.

Third, in addition to administrative harms (which were not argued by the state in Holt v. Hobbs), there may be, as I’ve said before, symbolic harms of various kinds at issue (the state didn’t argue these either…but the state did a fabulously poor job of defending this case). Symbolic harms might affect the prison, the inmates, and the rest of us who support, in various ways, the system of criminal justice. As I indicated in my previous post, these are just as much harms to identifiable interests as are financial harms. They might include harms with respect to the equal treatment of prisoners and harms to the state’s interest (that is to say, to our interests, as well as the prisoners’ interests) in imposing discipline and uniformity on prisoners who very much need it. These are true harms. They are part of the purposes and functions of prisons in general. They even implicate certain important functions of punishment, including retributivism and rehabilitation, functions of punishment that Congress itself has recognized as important in the Sentencing Reform Act, among other places. Surely many state legislatures have done something similar in their own penological systems. To my mind, they may indeed be very significant. The egalitarian harms could be resolved in part by leveling up for non-believers, but that leveling up is extremely likely to produce other harms (resentments among those who cannot come up with a reason of “conscience” as well as rising administrative costs as more and more prisoners seek exemptions of various kinds).

Fourth, a final point of puzzlement: why is there no discussion in SHTEC theory of different standards of deference in a case like Holt as opposed to a case like Hobby Lobby. Under existing law, there is no deference at all in the latter (the standard is one of strict scrutiny), while there is great deference to the state in the former. Indeed, one of the primary points of uncertainty in the oral argument in Holt was how to reconcile strict scrutiny with this substantial deference to prison administrators (cf. Grutter v. Bollinger). But I have not seen this difference in the amount of deference accorded to the state discussed by SHTEC theorists (I may well have missed it). Does SHTEC theory incorporate a deferential posture with respect to prisons (and the military, and perhaps certain other institutions)? It certainly could, and it seems to me that such deference would take the form of giving a great deal more latitude to the state (or to third parties) on the issue of what is “substantial” or “significant” harm. Perhaps Arkansas still loses in Holt v. Hobbs. But it shouldn’t take much more at all for it to win.

What’s Happening in Houston?

When I first saw the story, I dismissed it as a hoax. The City of Houston had served subpoenas on local pastors who had participated in a petition drive against a city ordinance, known as HERO, which prohibits discrimination against LGBT persons. The subpoenas demanded that the pastors turn over “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

What could justify such an intrusive request? Not only the pastors’ own statements – that would be troubling enough – but statements the pastors had revised, or approved, or just kept in their possession, about homosexuality and gender identity. And about the mayor herself. There must be more to the story, I thought.

It turns out there is a bit more to the story— but the episode is nonetheless very unsettling. When the city rejected the petition on the ground that the signatures were invalid, some opponents of HERO – not the pastors themselves – challenged the city’s decision in court. The city issued the subpoenas in connection with that litigation. The theory, as I understand it, is that because these pastors helped organize the petition drive and hosted meetings, the pastors’s statements about the petition are important. I guess the idea is that the pastors may have said something that induced phony signatures.

Now, given the rules of pretrial discovery, one must concede that there is some plausibility in the city’s argument – some. In an American lawsuit, attorneys can ask for all sorts of information before trial, even if that information is not strictly relevant to the litigation, as long as the information seems reasonably likely to lead to relevant and admissible evidence. This broad standard is meant to allow parties to uncover all the facts. So when the city says it would like to know what the pastors may have said about the petition drive itself, that’s not a completely untenable position, given the freewheeling rules of American pretrial litigation.

But there are other very important considerations. The broad standard for discovery can lead to so-called “fishing expeditions” that seek to harass and intimidate litigants and encourage them to back off. As a result, courts generally have wide discretion to reject requests for information that are overly broad and unduly burdensome to the opposing party. In a context like this one, which raises very sensitive First Amendment concerns, courts must be especially careful.

The pastors have moved to quash the subpoenas. They should and will likely succeed, largely if not completely. Indeed, in response to complaints, including from some defenders of LGBT rights, Mayor Parker and the Houston City Attorney have already indicated that they think the subpoenas are too broad and should be rewritten. (They blame the misunderstanding on pro-bono attorneys the city retained to handle the litigation.) Maybe the court will allow subpoenas with respect to statements directly related to the petition drive, but that’s as far as it’s likely to go. I wonder if the court will allow even that.

Still, even if these pastors succeed in resisting the subpoenas, significant damage has been done. It’s hard to see how this episode will not chill religious and political expression. Most people, quite rationally, want nothing to do with lawsuits and subpoenas. They don’t want to make legal history. The lesson they will draw from the episode is this: if you want to avoid trouble, don’t make politically-charged statements about religious convictions that the government doesn’t approve, even if you’re at a private meeting in your own church. In fact, don’t revise or retain such statements. Otherwise, who knows? You may one day have to lawyer up.

Stendhalian Interlude

I’m listening to Stendhal’s The Charterhouse of Parma in the car, a wonderful

Farnese Tower, Castell'Arquato, Parma

Farnese Tower, Castell’Arquato, Parma

work of novelistic “realism” set in the early 19th century world of Italian city-state court life. Stendhal’s portrait of these small time courts is none too flattering, but neither is its chief alternative: “From the whole business one can derive this moral, that the man who mingles with a court compromises his happiness, if he is happy, and, in any event, makes his future depend on the intrigues of a chambermaid. On the other hand in America, in the Republic, one has to spend the whole weary day paying serious court to the shopkeepers in the street, and must become as stupid as they are; and there, one has no Opera.”

The hero of the story, Fabrizio del Dongo, is a figure of perfect aristocratic early Romantic integrity–the sort of man who brashly leaves his suffocating palace life in Como to join the army of Napoleon, only to reach him right as the Battle of Waterloo is concluding. For Fabrizio, the only thing that matters is to get confirmation that he has actually participated in a battle–any battle–something about which he is never quite certain.

Since prisons and prison life (and even prison escape!) have been a subject of discussion here at the Center for Law and Religion Forum this past week, and since a large portion of the key section of The Charterhouse of Parma occurs in a prison (the Farnese Tower in Parma, at right), I thought the following was interesting. The prison warden, a General Fabio Conti, is a detestable person and fairly universally hated, including by many of the guards (to say nothing of the prisoners). At one point, it appears that he may have died by poisoning. But he revives. Yet rather than feeling crushed by the news, the prisoners sing his praises. Stendhal writes:

Fabio Conti was a jailer who was always uneasy, always unhappy, always seeing in his dreams one of his prisoners escaping: he was loathed by everyone in the citadel; but misfortune inspiring the same resolutions in all men, the poor prisoners, even those who were chained in dungeons three feet high, three feet wide and eight feet long, in which they could neither stand nor sit, all the prisoners, even these, I say, had the idea of ordering a  Te Deum to be sung at their own expense, when they knew that their governor was out of danger. Two or three of these wretches composed sonnets in honor of Fabio Conti. Oh, the effect of misery upon men! May he who would blame them be led by his destiny to spend a year in a cell three feet high, with eight ounces of bread a day and fasting on Fridays!