Category: Religion

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“Agents of Hope”

A few random thoughts inspired by Rabbi Suzanne Singer’s “Judaism & Hope” sermon.

It cannot be denied: To live is to hope – that somehow, against all odds, evil will not triumph; that somehow, in the face of heartless bigotry, hatred will not prevail; and that somehow needless suffering (despite the toll of human misery) will abate.  To hope for a better plight is as vital to the human spirit as white blood cells are to the human body.

But what is this hope, and how is it to be realized, if at all?

Hope is struggle. It is more than a child’s naive wish, and it is quite different from an optimist’s blind faith in a benign future. It is a commitment to change – a change for a better world. It is active rather than passive; it seeks to move the world rather than wait to be moved by it. Seize the day, push the rock!

Hope trades in chance . . . in the chance that at a particular pinpoint in time life may get better. Thus our hope must be humble and patient; we must understand that the future may not come in time to save us. Hence our hope must be sober-minded; it must not be unduly romantic; it must not trade in the intoxicating promises of panacea.

Hope is a process; it is that spirit within us that struggles on and on in the face of discouraging prospects depressing enough to turn a man to stone. And why engage in such seemingly Sisyphean acts? Because to live is to struggle, not thoughtlessly, but with a commitment to justice and kindness and all other things that improve the human condition. Struggle gives fiber to hope.

Heed his words: I do not give the human race more than one chance in a thousand, but I would be less than a man if I did not act on that chance. So wrote Albert Camus, the Resistance fighter who in the darkest of moments did not lose hope in the cause of humankind to be better than it was at a time when malice and barbarity seemed unconquerable. By hope’s standards, had evil prevailed, Camus’ hope would not have been any less genuine or important. For what counted most was the struggle, the will to improve the plight of so many millions uprooted from the soil that gives life meaning.

The moral: Hope is a prayer that may go unanswered in one’s lifetime, but it is an act of the highest human order. In its noblest form, it touches that something buried deep within us that denounces evil and affirms goodness. If hope dies today, it does so in the belief that it will inspire yet more hope for tomorrow, which alas, may usher in the springtime of a new season of humanity.

As an aspiration worthy of our shared respect, hope must be something other than a commitment to greed. To be sure, one can hope to become a billionaire and dedicate herself to that quest, and to do so for no more than the sake of pride and pleasure. But the hope of which I speak is not the hope of avarice. It deals not in the wheel of roulette.

If hope is to be a virtue, it must be virtuous; it must speak to the best in each of us. Take, for example, the woman who amasses a fortune with the hope of rebuilding a temple leveled by a terrorist’s bomb or with the hope of sponsoring a group to repair the limbs of wounded soldiers – that kind of hope converts money into humanity.

There is a line in Rabbi Singer’s sermon that touched a nerve in me; it is this: Hope, not out of victory and success, but hope out of defeat and despair. We turn to hope because we cannot abide despair; our psyches simply cannot endure the hopeless specter of a Nietzschean nightmare cast eternally. By that measure, there is something therapeutic in hope, and that something helps us go on with our lives. Hope is an antidote to the melancholy that can rob one of the will to live.

To echo Rabbi Jonathan Sachs’s words: To be a Jew is to be an agent of hope in a world seriously threatened by despair. How heartening those words! To that end, may the agents of hope help to remake our world, repair our hearts, repel our fears, and rekindle that spark within us that longs for light. Or to draw from Simone Weil, “there is only one fault: incapacity to feed upon light . . . .”

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FAN 53.1 (First Amendment News) U. Maryland Law to Host Conference: “The Impact of the First Amendment on American Business”

e5eb96fc377fcf9f7e18eb56d245dca1The 2015 Symposium (March 27th), “The Impact of the First Amendment on American Businesses,” will facilitate a discussion on the effects and consequences of First Amendment jurisprudence on businesses. The symposium will specifically cover the areas of commercial speech, religious exemptions for businesses, and rights of businesses to use technology appropriately. This event will be located at University of Maryland Francis King Carey School of Law, and is open to anyone interested in attending, including students, lawyers, and scholars.

Welcome and Introductory Remarks
Dean Donald TobinUniversity of Maryland Francis King Carey School of Law

Keynote Speaker 1
Travis LeBlanc, Federal Communications Commission

Panel 1: First Amendment and Commercial Speech Relating to Health

Jane Bambauer, University of Arizona School of Law
Adam Candeub, Michigan State University College of Law
Stephanie Greene, Boston College & Greene LLP
Kathleen Hoke, University of Maryland Francis King Carey School of Law
Wendy Wagner, University of Texas at Austin School of Law

Panel 2: First Amendment and Technology

Hillary Greene,  University of Connecticut School of Law
James Grimmelmann, University of Maryland Francis King Carey School of Law
Glenn Kaleta, Microsoft Corporation
Renee Knake, Michigan State University College of Law
Neil Richards, Washington University School of Law
Felix Wu, Yeshiva University Benjamin N. Cardozo School of Law

Panel 3: Religious Exemptions for Corporations

Caroline Corbin, University of Miami School of Law
Michelle Harner, University of Maryland Francis King Carey School of Law
Louise Melling, American Civil Liberties Union
Jennifer Taub, Vermont Law School
Nelson Tebbe, Brooklyn Law School

Keynote Speaker 2

Tamara PietyUniversity of Tulsa School of Law

Closing Remarks

Danielle CitronUniversity of Maryland Francis King Carey School of Law

For additional information, please contact Joella Roland, Executive Symposium & Manuscripts Editor, via email at JoellaRoland@UMaryland.edu.

ht: Neil Richards 

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Photographic License to Discriminate?

The loosening of restrictions on same-sex marriage over the last decade has been accompanied by the refusal of persons opposed to such unions to participate in them in any way. Naturally, the law requires no one to show up and cheer at a same-sex wedding or commitment ceremony, but what if a county clerk did not want to issue marriage licenses to same-sex couples or a health care worker refused to perform the necessary blood tests? Obviously, some objections to marriage will intrude on a couple’s ability to marry more than others.

800px-Photographer

The key to understanding which objections are legal and which are not does not only lie in guarantees of religious freedom. Everyone is free to harbor religious or philosophical opposition to same-gender couples and to shout that message from the rooftops, as long as they do not create a nuisance in doing so. It is in jurisdictions that have enacted prohibitions on sexual orientation discrimination in public accommodations where those who peddle their wares in the public marketplace are not allowed to reject customers for being gay. In such jurisdictions, religious opponents to same-sex unions have every right to voice their objections in church and to teach their children that it is wrong to be gay. If these opponents open up shop in the local marketplace, however, they are required to leave their biases at home.

New Mexico has such a law. Elaine Huguenin is a talented photographer who makes a good living recording important moments in the lives of the people of Albuquerque. In 2006 she decided to refuse the request of a lesbian couple that she be the photographer at their commitment ceremony. When sued, Huguenin, obviously aware that her religious freedom argument would have no traction under decades-old Supreme Court precedent, came up with the novel argument that if she were required to photograph the ceremony, she would be forced to celebrate it and to express that she is accepting of same-sex marriage. This is a story that Huguenin did not want to tell.

Huguenin’s argument sounds as if it was lifted from the Supreme Court’s Boy Scouts of America v. Dale decision. But since her “expressive policy” is merely to make money with her camera, she gave the argument a twist. She insisted that artists, since they create protected speech, must be free to choose what customers they will serve and will not.

While I have no reason to doubt that Huguenin is an artist of the highest caliber with a special flair for photographic storytelling, I fail to see how her status elevates her above someone who merely hires herself out to record an event. I am certain there have been many occasions when the contract between Huguenin and her customers has constrained her to adhere to provisions about how and when, to what degree and in what format they want their stories told. But the question here is not whether Huguenin can refuse to sign a contract whose provisions offend her artistic sensibilities. The question is whether she can refuse her services because the customers are gay. In Huguenin’s case, at least, an argument for carving out an exception in the law for artists is not likely to carry the day.

Furthermore, the law in this case simply does not force Huguenin to make art in a way not of her choosing or to utter a statement that is against her religion. First, it is a given that Huguenin will tell the story of an event in her own way. She is, after all, the one behind the camera. Second, as someone hired to take pictures at the event, she participates primarily as an observer who has some interaction with the major players when she stages certain photographs. More important than the fact that she is not truly there to celebrate is the fact that her hired presence in no way implies an expression that she believes in the goodness of the proceedings.

If Huguenin wants to turn a profit in the economic environment the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.

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Shuffling Constitutional Cards

You cannot bring an as-applied challenge to a general law that burdens your free exercise of religion.  This is the holding of Employment Division v. Smith (or at least the basic holding–there are some qualifications).  Suppose I instead bring a free speech claim on behalf of my desire to say a prayer or do something religious.  You can make an as-applied challenge to a general law on free speech grounds.  How should a court address this sort of claim?

I ask because the New Mexico wedding photographers who were found liable for violating the state’s non-discrimination law because they refused to shoot a same-sex commitment ceremony made both claims (free exercise and free speech) in state court.  In their certiorari petition, though, they are only making a free speech claim.  Can these claims be separated? In other words, if the motivation is religious, then shouldn’t Smith apply?  If not, isn’t it pretty easy to circumvent Smith? And doesn’t the distinction between free speech and free exercise require courts to make sensitive judgments about what constitutes a genuine religious claim?

Comments–gmaglioc@iupui.edu

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“The Divine Institution of Marriage”: An Overview of LDS Involvement in the Proposition 8 Campaign

I’ve just posted to SSRN my article in the forthcoming St. John’s Journal of Civil Rights and Economic Development. This article is part of the recent Symposium on Same-Sex Marriage at St. John’s.

My article is largely descriptive, setting out in some detail the LDS (Mormon) church’s actions and statements relating to Proposition 8. It chronicles a significant amount of factual material that has not been discussed at all in the existing legal literature. It may be especially relevant to people who have an interest in Proposition 8, same-sex marriage issues, gay rights issues generally, or LDS church issues generally. Full abstract follows past the jump: Read More

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Vouchers ascendant?

The heartening (and unanimous) decision by the Indiana Supreme Court on Tuesday to uphold that state’s school-voucher program further undermines a dominant but false narrative in the academy, to the effect that school vouchers are a distraction with little serious political support. The opinion is notable for several reasons, and I expect to post again about some of them. Here I note only two. First, the Indiana program makes enormous numbers of children voucher-eligible. Second, the Indiana court’s analysis makes some interesting and important moves with respect to both its constitution’s religion and education clauses.

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“Mutual Adjustment” as (merely) congruence delayed

I am delighted by and grateful for the opportunity to participate in the Concurring Opinions symposium on Jim and Linda’s engaging, important, and challenging new book, Ordered Liberty.  And, the contributions so far have managed the tough task of enriching what was already the very welcome opportunity to read and think about the book.

I have — like Linda and Jim, though I’m sure not with their success — tried to think and write about “civil society” and “seedbeds of virtue” (here), about the tension and even conflicts between liberty and equality (here), and about the moral and legal rights of parents to direct and control — within some limits — the education of their children (here). Ordered Liberty has given me a needed opportunity to re-visit and re-think some of what I’ve said and thought, and I’m sure that process will continue.

At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so.  But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.

So, a more focused thought on a particular part of the book:  In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.”  Fair enough — these case do indeed illustrate these struggles.  But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.”  That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions.  To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.

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Papal Domain Names

The upcoming election and (nearly) unprecedented abdication of Pope Benedict XVI raises several fascinating questions.  What if he changes his mind next week?  Can he withdraw his resignation? What do you call an ex-Pope?  Pope Emeritus?  Your Former Holiness?  It’s also worth noting that Benedict changed the rule on papal elections to require a 2/3 majority in the conclave.  John Paul II had instituted a rule that would (after a certain number of ballots) permit less than 2/3 of the eligible cardinals to elect a Pope.

From a trademark angle, a papal election means another free-for-all on possible papal domain names.  Last time around, somebody grabbed up every address that could be used if you assumed that the new Pope would pick a name that was chosen before.  He then donated Benedict XVI’s name to the Vatican–apparently he just wanted to keep the names out of the hands of a critic of Catholicism.  Perhaps the same guy is doing that now.  Nothing stops you from getting in on this gold rush though, unless the new Pope crosses us up and pick an entirely new name.

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Review of Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy

Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy (Harvard University Press 2012)

Don’t be alarmed by his book’s sweeping title: Abner Greene isn’t suggesting that we chuck Contracts from the law school syllabus. Rather, he has three particular sorts of supposed obligations in his crosshairs: a moral obligation always to obey the law (also known as political obligation), an obligation to defer to “the past” – be it “original meaning” or simply judicial precedent – in constitutional jurisprudence, and an obligation by public officials to be bound by the Supreme Court’s reading of the Constitution. A surprising number of theories propose the existence of such obligations in “content-independent” form – and Greene refutes them methodically, even relentlessly, one after another. One of the achievements of this book is that he manages to sound more reasonable than radical while doing so.

But while the book’s subtitle, “The Multiple Sources of Authority in a Liberal Democracy,” suggests a broader viewpoint, this book is embedded within an entirely American discourse. A reader outside the US, or even one of a comparativist bent within it, might well wonder whether Greene’s arguments are as airtight as they seem, whether they’re as controversial as he may think they are, or even what sort of philosophy this kind of book is really about.

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The Contraception Mandate Part II

In my last post, I argued that the requirement that religiously affiliated organizations include contraception in their health insurance plans does not violate the Free Exercise Clause. That’s not such a hard argument to make given the Employment Division v. Smith rule that neutral laws of general applicability are constitutional, no matter what kind of burden they may create for religious practices.

The Religious Freedom Restoration Act (RFRA), on the other hand, is easier to violate. RFRA was passed in reaction to Employment Division v. Smith. Congress wanted to restore the more demanding (at least on paper) pre-Smith test for religious liberty claims. The Supreme Court struck down RFRA  as applied to the states but not as applied to the federal government. Under RFRA, a federal law cannot impose a substantial burden on a person’s exercise of religion unless it passes strict scrutiny.

Saving the question of whether the contraception mandate imposes a substantial burden for another post, would it pass strict scrutiny? Does the contraception mandate advance a compelling state interest in a narrowly tailored way? It is not hard to come up with compelling reasons why women who do not want to become pregnant should have access to contraception. Women’s ability to control their reproduction is essential to their wellbeing, their bodily integrity, and their ability to participate as equals in the social, economic, and political life of the nation. In fact, the failure to cover contraception may well amount to sex discrimination if a health insurance plan covers all basic preventive care except for pregnancy-related preventive care like contraception. (While pregnancy discrimination is not considered sex discrimination for equal protection purposes thanks to Geduldig v. Aiello, it is sex discrimination for Title VII purposes thanks to the Pregnancy Discrimination Act.) Promoting women’s health, liberty, equality, and equal access to health care are all compelling state interests.

Nevertheless, at least one court has concluded that the contraception mandate was not motivated by a compelling interest because it contains too many exceptions, such as the ones for grandfathered plans and small employers. So, while the court acknowledged that “the promotion of public health” is generally a compelling state interest, it held that “any such argument is undermined by the existence of numerous exceptions to the preventive care coverage mandate. . . . A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” I disagree. The number of exceptions might matter if there were some question about whether the state’s interest really was compelling or not. If we are not sure about the importance of uniform appearance among police officers, numerous exceptions to grooming requirements might lead to the conclusion that it is not as important as the state claims. However, such exceptions should not matter when the state’s goals have long been recognized as compelling — and surely we are past the point of debating whether promoting women’s liberty and equality and preventing sex discrimination are compelling state interests.

Perhaps, then, it could be argued that the law is not narrowly tailored. How strict the tailoring must be under RFRA in not clear. If RFRA is meant to reinstate the pre-Smith test as practiced, then it is not very demanding, since the Supreme Court rarely found that laws failed strict scrutiny in Free Exercise Clause challenges. In any case, one argument that should be rejected is that the law is not sufficiently tailored because the government could provide contraception instead. But that can’t be right. Imagine a bookstore that refused admittance to Hispanics. Or imagine an employer whose insurance covered cancer screenings for white employees but not Asian ones. Now imagine the bookstore or employer arguing that a law banning race discrimination in places of public accommodation or in the provision of employment benefits fails strict scrutiny because the state could sell the books or provide the benefits instead. Such a claim is a distortion of strict scrutiny and should fail.