Discrimination and Diversity

Stephen Monsma’s recent piece in Capital Commentary provides helpful perspective on the California State University’s system-wide de-recognition of InterVarsity Christian Fellowship. InterVarsity asks that its officers hold religious views consistent with the group’s mission, placing it at odds with recent CSU policy changes prohibiting recognized clubs from discriminating on a host of lines, including religion. Monsma wonders how: “…in the upside-down, Alice-in-Wonderland world of the CSU, reducing the diversity of on-campus religious student organizations somehow will increase students’ ‘exposure to new ideas, especially those that are in conflict.’”

Monsma’s argument echoes Justice Alito’s 2010 dissent in Christian Legal Society v. Martinez–a case which dealt with a closely parallel situation. In the CLS case, Alito argued that making an all-comers policy a condition for recognized club status worked against the very diversity it purported to promote: “In sum, Hastings’ accept-all-comers policy is not reasonable in light of the stipulated purpose of the RSO forum: to promote a diversity of viewpoints ‘among’–not within‘registered student organizations'” (p. 31).

Like Alito, Monsma points out that not all discrimination is invidious. Indeed, ensuring that groups can make such distinctions is essential to the existence of groups espousing diverse viewpoints. Monsma is right that CSU’s policy injures the pluralism of California’s CSU campuses. His commentary can be found in its entirety here.

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Education, Formation, and Assessment

(Note: this post began as a reply to Bryan’ McGraw’s post from July 23, but it got long enough to suggest posting it separately–though not because I disagree with McGraw’s argument.)

David Brooks’ recent column on William Deresiewicz reaches conclusions similar to McGraw’s, though Brooks is somewhat less critical of Deresiewicz. Rather than framing what is missing from higher education explicitly in terms of “human flourishing” as McGraw does, Brooks describes the problem in closely related terms:

But people in authority no longer feel compelled to define how they think moral, emotional and spiritual growth happens, beyond a few pablum words that no one could disagree with and a few vague references to community service. The reason they don’t is simple. They don’t think it’s their place, or, as Pinker put it, they don’t think they know.

In contrast, those in parental authority still (usually) claim some “place” in more substantive accounts of formation-for-flourishing. Michael J. Lewis’ piece in First Things today suggests that to exercise this authority effectively, parents may need to take a significant step back. Lewis uses Deresiewicz as a launching-point for questions tied up with childhood formation–how non-constrictive parenting habits and especially independent play are essential to shaping imaginative, responsible, and mature people. He argues that unsupervised play allows children to learn from the consequences of the choices they make “when no one is looking.” He continues:

They do this in the process of deciding what to play, establishing the rules, choosing sides, and resolving the inevitable dispute. In short, by acting as miniature citizens with autonomy rather than as passive subjects to be directed.

While the “unsupervised” aspect of this could easily be overstated (formation requires outside influences, after all), the exercise of minimally-structured agency seems a crucial part of maturation.

I can’t help but wonder whether both faces of the problem–a rigidly cognitive (and thus anemic) conception of education on the one hand, and risk-adverse and unimaginative students on the other–will only be compounded by educational trends that are increasingly oriented towards assessable outcomes. In other words, might the pressures from accreditation agencies (and increasingly from government sources) have stifling consequences on education-for-flourishing in a manner analogous to the effects of helicopter parents on their children’s maturation?

Cognition–especially its simpler forms–is easier to quantify than are the many facets of a robust account of human flourishing. Moreover, imaginative and risk-taking academic work may not seem like a good bet to students or their teachers in a context that rewards narrowly-defined assessable successes. Like a parent watching from the kitchen window, the presence of the rubric may loom increasingly over the academic endeavor, constricting the goods it orients itself to pursue.

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A Critique of the Critique of the Ivies

Folks all around the internets have been applauding this TNR essay by William Deresiewicz on what is, apparently, the soul-killing, inegalitarian “education” offered by our elite institutions.  There’s a lot of nice stuff in there – even a shout-out to “obscure” religious colleges that might provide a better education than the Ivies.  (Hey, bud who’s obscure?  We end up in the papers at least every few years so weirdly countercultural!)  But, honestly, as a piece of argumentation, it’s a bit of a mess.

He starts off with what seems now like a familiar lament regarding the ridiculous kinds of things people need to get into elite colleges – perfect test scores, unbelievable (in the literal sense, I think) kinds of volunteer work, and so on – and then quickly turns to the problem that the education many students get at elite schools leaves a great deal to be desired.

I taught many wonderful young people during my years in the Ivy Leaguebright, thoughtful, creative kids whom it was a pleasure to talk with and learn from. But most of them seemed content to color within the lines that their education had marked out for them. Very few were passionate about ideas. Very few saw college as part of a larger project of intellectual discovery and development. Everyone dressed as if they were ready to be interviewed at a moment’s notice.

He then goes on to assert – presumably the evidence for many of his assertions are in his forthcoming book for which this serves largely as a teaser – that our elite schools largely serve as vehicles for the reproduction of class privilege and that we ought to (a) work to dismantle the ways the elite schools privilege those with monetary privileges and (b) make public higher education free (just like K-12 education).

Well, that’s nice and all, but it’s a bit of a let-down, isn’t it?  I mean, we get all that soul-killing stuff up front and what we get out of it is the promise to do to higher education what we’ve done to secondary schools over the past four decades or so.  I’m sure the University of Virginia will be awesome once the teachers’ unions get their hands on it.

Let me suggest that there’s a deeper problem and it’s with what he (and many other folks) think the point of college is.  Here’s his view:

The first thing that college is for is to teach you to think. That doesn’t simply mean developing the mental skills particular to individual disciplines. College is an opportunity to stand outside the world for a few years, between the orthodoxy of your family and the exigencies of career, and contemplate things from a distance.

Learning how to think is only the beginning, though. There’s something in particular you need to think about: building a self. The notion may sound strange. “We’ve taught them,” David Foster Wallace once said, “that a self is something you just have.” But it is only through the act of establishing communication between the mind and the heart, the mind and experience, that you become an individual, a unique beinga soul. The job of college is to assist you to begin to do that. Books, ideas, works of art and thought, the pressure of the minds around you that are looking for their own answers in their own ways.

College is not the only chance to learn to think, but it is the best. One thing is certain: If you haven’t started by the time you finish your B.A., there’s little likelihood you’ll do it later. That is why an undergraduate experience devoted exclusively to career preparation is four years largely wasted.

The problem here isn’t that he supposes college is about helping you become a better thinker–and we should all be thankful that he doesn’t offer us the insipid rhetoric of “critical thinking”–but that he inverts the relationship between, we might say, virtue and reason.  Suppose we think that “thinking” is a kind of stand-in for “reason” and “self” is a stand-in for living well, or virtue.  When he complains that elite schools teach students how to think only in instrumental terms, I wonder if he realizes that even the way he has set up his sense of what college is for follows along the same path.  In his view, we develop our (instrumental) reason so that we can develop (or “find” in the more common parlance) our “self” apart from that which has been handed down to us – family, tradition, community, religion, etc.  That’s what colleges already do, most of them, anyway.

Elite universities don’t fail at education because they’re too easy or don’t have the right mix of classes, ethnicities, etc.  They fail at education because they misunderstand what education is really all about and the truth is that unless they recognize that education is ultimately about human flourishing, their discontents will keep writing books and essays lamenting their failure.

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A series on the Founding

The John Jay Institute is hosting a series on the Founding and the Declaration, featuring an essay by Joseph Postell about whether the Founders relied on reason OR tradition and experience. Smartly, he finds it’s not an either/or. I try to bolster his case.

http://www.canonandculture.com/false-choices-americas-philosopher-on-reason-tradition-and-experience/

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Evangelicals and Natural Law, Part I

Last year, the eminent theologian David Bentley Hart kicked off what amounts to a bit of a firestorm in the theo-political corner of the blogosphere with a couple of short essays published in First Things.  He suggested, roughly, that the natural law tradition, which has stood at the center of much Christian thinking about politics for, well, most of Christianity’s history, wasn’t really viable.  (Brad Littlejohn has a nice summary of the pieces and many of the reactions it engendered here).  As Littlejohn notes, Hart’s point was not that natural law’s metaphysical premises are wrong, but that given the ways we moderns tend to think about nature (including human nature) it just doesn’t make sense to talk in terms of natural law in our public political deliberations: no one else buys it, it doesn’t persuade, it’s hard to make sense of it, etc.   I’m not interested in re-litigating Hart’s argument—in blog-time, that was a year ago, which is something like a century in regular time—but I am interested in some of the questions he raises.  Indeed, I’ve got something of a dog in the fight, since I (along with my co-authors on this blog) published an edited volume in which the contributors deliberated on the ways in which evangelicals might appropriate the natural law tradition in their political reflections.  More to the point, we are in the early stages of co-authoring a book in which we hope to do precisely what Hart says you can’t really do, make natural law arguments intelligible and useful for Christians within the context of modern pluralist democracies.  (We haven’t gotten to the point of pitching this to publishers, but if you’re a publisher and would be interested, get in touch!)

 

So how to do that?  For all the fulminations and critiques leveled at Hart (many of which I found true), a basic point remains: what typically passes for natural law arguments are generally no more persuasive in public deliberations than citing scriptural authority.  As Alan Jacobs once remarked to me, it might just be easier to get people to convert to Christianity and then persuade them regarding the natural law.  So the question we are interested in runs something like this: supposing that Christians should endorse the idea of the natural law (something Hart agrees with, by the way), how can we (if we can) bring those ideas into play in the context of our modern pluralist democratic order?  In this post, and probably any number of others following it, I will try to work out some reasonable answer to that, though fair warning: I am trying to work out some answers, meaning I will inevitably make all sorts of wrong turns, false claims, etc.  But that’s what blogs are for, right?

 

First, a bit of throat-clearing to set things up.  It’s important to recognize that when we talk about natural law, what we mean is the idea that human beings have a distinctive nature and that this means we have a distinctive set of ends and a distinctive way in which we can flourish (or live well).  On Aquinas’s understanding, for example, this cashes out in a claim that we should act according to reason since (following Aristotle) what distinguishes our nature is that we are distinctively rational creatures.  Since human beings have a distinctive and, in some sense, singular nature, it follows that we also share a common sense of flourishing and that this is available to all (aside from those whose contexts prevent that).  It does not follow—and no natural law theorist of whom I’m aware thinks this—that this idea of flourishing is then immediately obvious to all.  The idea of natural law is an ontological claim about who human beings are and what our true ends are, not an epistemological claim about how we know who we are and what those ends are.  That latter claim is part of what theories of the natural law are about.  So when we talk about the natural law, we are talking about what makes for human flourishing (for human beings as such).

 

Second, how should we understand our modern democratic context?  Hart’s skepticism regarding the efficacy of natural law arguments are of a piece with a much wider skepticism whose near ubiquity must be a part of our considerations.  To simplify things a bit, I think there are two main ways in which our context offers challenges to employing natural law claims, one political and the other philosophical-cultural.  The first suggests, broadly, that employing natural law claims are unfair and/or unjust and thus incompatible with the best understanding of constitutional democracies.  (Note here that this is not necessarily a problem for natural law.  It could be the case, after all, that natural law is true, that it is indeed incompatible with the best understanding of what makes a constitutional democracy work, and thus that constitutional democracy is a bad form of government.  I don’t think that is true – hence the book).  The second is more diffuse, but more challenging for all that: it suggests that natural law is a problem because it isn’t compatible with any reasonable modern understanding of nature and, correspondingly, of human flourishing.

 

And that’s really the rub here, namely that any recognizable theory of natural law will have at its heart a vision of human flourishing that then cashes out in a set of practices and institutions meant to support that vision—and preclude alternative ones.  Since we live in an age where most would deny that there is a defensibly distinctive view of flourishing or whether we can even talk comprehensively in those terms at all, making evocations about the natural law is, rhetorically, not likely to be “successful,” to say the least.  This gets me to my third bit of throat-clearing, namely that the reason to be interested in how or whether Christians should think about the natural law and engage politically in the light of its understanding.  Many American Christians are consumed by a sort of pragmatism and seem drawn to natural law arguments because, they hope, they might work (especially with regard to issues surrounding same-sex marriage).  As things have progressed in the US over the last several months, that particular hope seems less plausible than it might have.  In any case, though, I think the reason think about the natural law is really not so much whether it “works” or not, but whether it’s true.  I’m happy to be pragmatic in how we talk about this with our fellow citizens – and I have some ideas rattling around in my head for how to do this – but I’m only interested in those questions provided that the prior set of questions—is this true or even plausible—makes much sense.

So much for the throat-clearing.  Up next, thinking a bit more about the cultural and political challenges to natural law arguments.

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Why David Gushee Should Change His Mind on Hobby Lobby

David Gushee has offered a rather brief sketch of why he thinks Hobby Lobby should lose in its case currently before the Supreme Court.  I say “sketch” because he sketches out some of the legal and ethical issues and offers his opinion without really offering an argument connecting the two.  But I think we can surmise the argument from what he calls his “Critical Questions” at the end:

1) Do we really want to blur the line between the legal status of for-profit corporations over against churches and religious ministries?

2) Is there really no difference between an individual with an eternal destiny, a church with a Great Commission mandate, and a for-profit business? What does that say about our theological (and legal) understanding of persons and the church?

3) Wouldn’t a win for Hobby Lobby really mean that we would be ensuring that the religious convictions of the one (business owner/family) would then trump the needs (and convictions) of the many (everyone who works for that business)? Do we want to give business owners that kind of power?Cuius corporatio, eius religio?

4) What happens when, say, a Christian Scientist company owner decides not to cover any health benefits, or a Jehovah’s Witness company owner decides not to cover blood transfusions, or an anti-vaccination owner decides not to cover the MMR shots, or perhaps a trust-Jesus radical decides not to contribute to employee Social Security or a 401(k)? Do we really want to open up that Pandora’s Box?

5) Are critics taking seriously the public health benefits of no-cost contraception coverage, and the moral benefits of thelikely dramatic reduction in the number of unplanned pregnancies and abortions? Or does their principled objection to contraception and/or (perceived) abortifacients totally trump data related to the actual impact of no-cost access to contraception?

6) Do we see any legitimate role for government — e.g., our elected representatives in Washington making public laws to advance public purposes, including public health? Or has anti-government libertarianism entirely eroded such convictions?

7) Can we see (again) how the effort to mediate the delivery of access to health care through company health plans is really problematic? A single-payer government plan would take the corporate religious liberty issue completely off the table.

Ignore #s 7 (it would also not be a problem if employer and individual insurance plans were treated the same under the tax system), 6 (straw-man),  and 5 (Gushee’s not a utilitarian, so he shouldn’t be taking this seriously).  I think Gushee’s case is really two-fold, namely that for both theological and moral-political reasons, we should keep the distinction between for-profit corporations and other entities and decline to afford the former religious liberty protections.  Let me suggest why I think Gushee is mistaken in this.

First, note that it is perfectly legitimate to make any number of distinctions with regard to different sorts of organizations, theologically and politically.  So the question is whether a for-profit corporation should be considered the sort of thing that deserves some sort of religious protections?  Assume that Gushee is on board with exemptions for non-profit religious associations (which I think he is, though #5 above cuts against it and I haven’t read him making the argument on them in particular).  What makes for-profit corporations undeserving?

One answer might be that it could have any number of bad consequences, opening the doors to companies of all sorts making religious liberty claims against the ACA’s employer mandate.  (E.g. the Christian Scientist who doesn’t want to offer health insurance at all).  It’s entirely possible, of course, that if Hobby Lobby wins, such exemptions might go wild. But as Eugene Volokh explains in a nice primer on religious exemptions, that’s rather unlikely.  In these sorts of cases, Courts are being asked whether a particular government action represents a “compelling interest.  It seems reasonable to presume–and there’s plenty of case law to back this up–that courts would indeed think that a government mandate to provide health insurance would count, as opposed to this, where what is in question is whether the companies are required to purchase health insurance plans that provide free contraception.  Note this.  This is not about whether women have access to contraception, but whether they have it for free.  And the question is whether the state must compel companies to offer it for free.  Gushee’s suggestion here, while not out of the range of possibility, is really just a “parade of horribles” that seems really quite unlikely, to say the least.

But that’s really not the heart of Gushee’s argument, I think.  He really wants us to focus on #s 1, 2, and 3.  (Or he should – these are certainly the more interesting arguments, at least as a matter of Christian ethics.)  Let’s simplify things a bit and just put the objections this way: for-profit corporations are the sorts of entities that should not be afforded religious liberty protections because they are not the sorts of entities that can “exercise” religion.  Again, that’s not an implausible claim.  We would think it strange to suppose that GM could “exercise” religion and if we can’t distinguish (theologically and philosophically) between GM and First Baptist Church of Macon, it’s plausible to think that First Baptist’s rights will suffer, not GM’s.  But that depends, I think, on reducing the question to a simplistic binary: this sort of thing gets religious freedom protections and that sort of thing doesn’t.  But religious freedom protections are not all of a piece and it makes sense to differentiate even among different sorts of religious organizations.  It makes perfect sense (to me) for the state to have nothing to say about how churches choose their ministers.  It also makes perfect sense (to me) for the state to have little to say about how places like Wheaton College (where I teach) require faculty to adhere to certain faith commitments and agree to certain behavioral standards.  It makes much less sense for schools where, though they may have some religious affiliations, they do not make serious distinctions as regards employment.  (So a school like, say, Georgetown University should probably not get latitude from the federal government on hiring practices because they do not evince much of a serious religious identity).  The trouble with the all-or-nothing approach is that, ultimately, it will have the effect (I fear) of stripping all but the most resolutely “religious” associations of their religious liberty protections.  In other words, unless we’re willing to entertain these sorts of complex, nuanced, and messy distinctions, the “bright line” will eventually get drawn around churches proper–and little else will be included.

But, still, we might ask, why Hobby Lobby (or Conestoga Wood, which is also having its case litigated)?  Perhaps its its status as a corporation, which we have constructed as a means of incentivizing investment and entrepreneurship in that it shields the personal assets of the owners against the corporation’s debts.  Why not think that this shield should work both ways?  That sounds enticing, but notice that it suggests that the owners’ consciences should stop at the corporate barrier – why is that?  Don’t those who own and run corporations have moral obligations just like everyone else?  Isn’t the corporation that decides to pollute its neighbor’s property doing him harm, just like if I do it in my personal capacity? Don’t corporations have obligations, just like I do, to treat workers and others fairly?

And this is the real problem with what I take to be Gushee’s argument: it suggests that for-profit corporations are the sorts of things in which the owners’ religious consciences (or, really, any other sort of consciences) should not flow through.  That seems to me a serious mistake–and one that has, oddly enough, more in common with some (not all) libertarian conceptions of firms than I’d expect from him.  Suppose we draw the line here and say that for-profit corporations cannot be places where owners can be thought to exercise their religious conscience.  How does that shape our conceptions of what corporations are for?  My suggestion is that it reinforces the idea that *all* corporations are for is the amassing of wealth for its owners.  Some certainly see their corporations in that light.  Is that how Christians (or anyone else) should see them? I hope not.

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Religious Parties and Democratic Legitimacy

My latest, at the journal Critical Review of International Social and Political Philosophy

Thinkers committed to an ideal of public reason are suspicious of religiously informed political activity as it undermines democratic political legitimacy. This paper considers Jürgen Habermas’s recent shifts on this question in light of the history of Europe’s religious parties in the late 19th and early 20th centuries. These parties made a real and lasting contribution to Europe’s democratization and their history suggests ways in which Habermas and other defenders of public reason misunderstand the nature of democratic political legitimacy.

via Taylor & Francis Online.

(You probably need a subscription or university library to access it.  If you don’t have those, let me know and I can send it to you.  It’s riveting stuff!)

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Gushee and the Civil Order

This is just embarrassing.  There’s really no other word for it.  David Gushee is a very bright fellow.  I often find myself in some disagreement with him, but he’s at least thought-provoking.  I guess he is here, too, but more in the “what in the world is he thinking?” kind of way.

Gushee’s argument, such as it is, seems basically that Christians who object to serving same-sex weddings would do well to remember the advice of Scripture that talks about intra-Christian disputes and refuse to exercise their rights to legal and political redress when threatened with sanctions for violating anti-discrimination statutes.

First, note that the Scriptures he refers to are about those within the Christian community who find themselves in disputes, not about the relationship between Christians and the extant legal and political order.

Second, there’s nothing un-Christian about working to reform the legal and political order to make it fit better with one’s conception of justice.  Every Christian tradition, even those that deign to participate in the political order (as some Anabaptists would say), think that Christians should encourage that order to be more just (though they disagree on what that “encourage” should consist in).

But Gushee’s short essay is really rather pernicious, because it encourages Christians who are the subjects of injustice to simply sit down and take it.  And what’s worse, he does so in a way that makes it a virtue of the Christian life.  What’s awful about this is that there’s something true about this.  It’s true that Christians sometimes will be the objects of injustice and how we suffer that injustice matters.  We are asked to endure that injustice, endure it with patience and, indeed, love.  But that doesn’t mean we do not try to redress the injustice.  As Joe Carter has tweeted, one implication of Gushee’s view is that Dred Scott shouldn’t have sued for his freedom.  We could extend this. Why not say that women who are abused shouldn’t use the law to stop the abuse?  Or nurses coerced into participating in abortions should just submit?

The possibilities here seem endless but they all end in rather unsavory territory: when pressed by our sort of political order to participate in or suffer an injustice, Gushee’s view is that we should simply suffer then injustice and do it in a way that shows our love for the perpetrators of the injustice.  And sometimes we should probably simply suffer that or, rather, we will inevitably suffer injustices and there are better and worse ways to do so.  But the notion that this precludes the redress of that injustice via political or legal means is absurd and Gushee should know better.

 

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Justice and the “Problem” of Friendship

Chiara Cordell has just published an article in Political Studies entitled “Distributive Justice and the Problem of Friendship.”  Here is the abstract:

Friendship distributes critical benefits across society and does so unequally. Income, levels of education and health vary dramatically according to the quality of individuals’ friendships. Further, friendships shape the motivations and aspirations of their participants. In light of these facts, this article questions whether and how egalitarian requirements should apply to personal friendship. I first show that existing theories of distributive justice, whether they are ‘outcomes centred’ or ‘institutionalist’, have reasons to consider personal friendship as a direct subject of justice. However, both fail to provide reasonable guidelines for how to apply the requirements of justice to friendship. I thus argue that principles of justice, in particular fair equality of opportunity, ought to assess and govern that part of the social structure that controls the production and distribution of friendship bonds across society. I theorise a ‘relational distributive structure’, mainly constituted by civil society associations, as the appropriate subject of justice.

The basic argument is that differences in friendships creates differential, and inegalitarian, opportunities and outcomes and so friendships become, as it were, a “subject of justice.”  And since those differences in friendships end up in helping some more than others, the state has an interest in acting so as to equalize the consequences of friendship.  To her credit, Cordell doesn’t suggest anything especially totalitarian such as the state directly regulating our friendships.  Imagine each of us being categorized along three categories on account of our being more productive of social and human capital.  “Ok, you’ve already got three Cat 1 friends.  Now, you need to register some poor shlub as a friend to balance those out!” Ghastly.

But her preferred alternative is only modestly less problematic.  She supposes, rightly, that many of our friendships develop within the associations and institutions of civil society and it is here that she wants to apply the power of the state, by giving tax (and other, I suppose) advantages to associations and institutions that are more inclusive and less to those that are, of course, less.  In this way, she would place the thumb of the state on balance of civil society to create “opportunities” for people to make friends across social divides and promote her preferred sort of egalitarian justice.

One can just imagine the parade of horribles that would, no doubt, accompany such a policy (especially the insider dealing and temptation to use such a system to “reward friends and punish enemies.”) But what’s especially striking is the way that when she notes those associations that are more “exclusive,” it’s always religious groups that show up, if only in parenthetical asides.  I don’t think the point of the paper is to go after churches, but those do seem to be on her mind.  In the US, however, as much as churches are segregated by race and social status, they are the place where Americans are *most* likely to encounter someone of a different social class/profession.  What’s more, the *most* obvious places where “same” sorts of friendships are cultivated that do, in fact, help perpetuate privilege–our most elite colleges and universities–hardly get a mention.  Maybe I missed it, but I’d think that if you really want to go after the institutions in the US that do the most to create places where people make friends with people “just like themselves” (even if they look different, if people believe the same sorts of things and act similarly, they’re not really crossing social divides), our elite schools are the places to go.  So what do you say, let’s revoke the tax-exempt status of the top-50 universities in the US and cap their endowments at, say, $2 billion.

What’s that?!  You say that would destroy those institutions?  You don’t say…

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Speaking Truth to Chaos: The Arizona RFRA Amendment

There is a good deal of confusion as to whether Arizona’s SB1062, if signed, would enable businesses to systematically discriminate against homosexuals. Some major media outlets strongly indicate that it would and further suggest that this is the primary aim of the law. CNN Money states that the law: “would allow retailers to refuse service to lesbian, gay, bisexual and transgender customers based on the owners’ religious convictions.” The L.A. Times describes it as “a measure to bolster the rights of business owners to refuse service to gays and others on the basis of religion.” Thus framed as a pro-discrimination measure, the law is the subject of great deal of public ire and disdain.

Speaking helpfully into these discussions, a number of prominent law professors yesterday sent this letter to Arizona Governor Janice Brewer. Its authors include Mary Ann Glendon of Harvard Law School, Michael McConnell of Stanford Law School, Richard Garnett of Notre Dame Law School, and Douglas Laycock of UVA Law School, among a number of others.

While I commend reading the letter in its entirety, its major points include:

  • Framing this amendment to Arizona’s Religious Freedom Restoration Act in the larger context of Federal and state RFRAs, which provide certain limited protections for religious believers faced with the prospect of being forced to personally participate in an activity which would violate their religious beliefs.
  • Clarifying that when an is action covered under Arizona’s RFRA–even as amended–it does not mean that the action will be vindicated, but rather that certain guidelines will shape it’s subsequent adjudication in court (burdens on sincerely held religious convictions can only be sustained for compelling state interests–requiring assessment of sincerity, burden, and state interest). In the words of the letter: “So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision.
  • Explaining how the changes that SB1026 makes to Arizona’s existing RFRA legislation help to clarify ambiguities in its current language that lead to increased litigation, particularly on threshold issues rather than substantive ones.
  • Finally, noting how SB1026 does not suffer from the same discriminatory defects as Kansas’ HB2453.

The letter concludes:

“Business regulations do not often require a business owner to violate a deeply held religious belief, but sometimes they do, and when that happens, the Arizona RFRA should be available. Keep in mind that it will not guarantee either side a win; it will test the government’s claims and the religious believer’s claims under RFRA’s general standard.”

While many will still disagree about the substance of the law, this sort of clear legal thinking provides an important voice that may be missing from much of the current public discussion.

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