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Neo on Free Speech & the Offense of Promoting Hostility Between Different Groups

Jaclyn Ling-chien Neo  (Nat’l U. of Singapore, Faculty of Law) has posted Seditious in Singapore! Free Speech and The Offence of Promoting Ill-Will and Hostility between Different Racial Groups. The abstract follows.

In 2005, the archaic laws of sedition were summoned to counteract speech considered offensive to racial and religious groups in Singapore. Under the Sedition Act, it is seditious, inter alia, to promote feelings of ill-will and hostility between different races or classes of the population. In a later case involving religious proselytization, a Christian couple was charged and convicted of sedition under the same section. This article examines this new phenomenon. It investigates the manner in which these laws have been employed and jurisprudentially developed to restrain speech on race and/or religion in Singapore. The article argues that the current state of the law is highly problematic for its adverse impact on free speech as well as for its conceptual confusions with alternative bases for restraining speech. It contends that failure to extricate the existing conceptual confusions is adverse to free speech and community integration in the long run. A threefold legal framework is proposed to provide clearer guidance on inter-racial and inter-religious interaction within the Singaporean society.

Posted on by Mark Movsesian

Puzzling

As my colleague Marc pointed out Friday, there are some pretty serious questions about the Administration’s new contraception-coverage mandate. I don’t mean that rhetorically. I mean it’s genuinely unclear what the answers are, even after a weekend in which Administration officials and liberal Catholic commentators like EJ Dionne went on the airwaves to claim that the President had resolved the controversy. Two questions, it seems to me, are crucial:

  • Are insurance companies really going to absorb the costs of employee contraceptives, sterilization, and abortifacients? Some commentators reason that because these services are cheaper for insurance companies than pregnancy care, the companies will be glad to foot the bill. Does that make sense? Have insurance companies made any representations about this? (As of this morning, there was nothing on the website of health insurers’ umbrella organization, “America’s Health Insurance Plans,” or AHIP). Why wouldn’t insurance companies find a way to pass the cost of these services on to the employers who purchase the insurance contracts?
  • What about religious institutions that self-insure? According to the Becket Fund, thousands of such institutions exist.

Until one knows the answer to these questions, it’s hard to see how this “compromise” changes anything in substance about the original mandate.

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Eng, Ruskola & Shen on China and the Human

David L. Eng (U. of Penn.), Teemu Ruskola (Emory U. School of Law) Shuang Shen (Penn. State. U.) has posted China and the Human. The abstract follows.

China is everywhere in the news. Most stories seem to fall into one of two categories: accounts of China’s astounding economic development, and reports of equally astonishing human rights abuses in China. Paradoxically, as it turns into a global economic powerhouse, China’s relationship to political freedoms and rights appears to stand in an almost inverse relationship to its economic success. To make sense of the contemporary political moment, this essay examines the politics and histories of China and the human. At the same time, it constitutes a critical introduction to a special double issue of the journal Social Text on the same theme. The special issue, consisting of eleven essays and a visual dossier, considers the problematic conceptual, political, historical, and cultural relationship between Chineseness and humanity. By juxtaposing “China” and “the human” as two discrete categories, this introductory essay does not assume either concept as a pre-given object of knowledge. Rather — together with the other essays in the volume — it examines both China and the human as set of relational, differential, and contrapuntal events, in specific historical and geopolitical contexts.

The introductory essay provides a conceptual and historical map for this inquiry, in a comparative context that examines Euro-American, Chinese, and transnational itineraries of the human and their global crossings. It analyzes China’s potential to undo the universalizing claims of Western idealized norms of the human, while refusing to re-essentialize a Chinese otherness as an alternative perspective. More specifically, the essay interrogates the domination and limitations of the universal human while tracing alternative cosmologies and discourses of Chinese humanism and anti-humanism, informed by Confucianism, Daoism, and Buddhism, as well as other religious and political traditions. It also examines Marxist and Maoist conceptualizations of the human from transnational perspectives, and finally it considers the status of the human in contemporary China, defined increasingly as a bearer of a set of political and legal rights. What humanity means in China today — and in the world — and what it will mean in the future, is part of an ongoing struggle over the meaning of the past and the politics of the present. This essay offers “China” as a methodology in itself, rather than simply an object of inquiry.

Posted on by Marc O. DeGirolami

Supreme Court Review Sought in Mt. Soledad Cross Case

The petition for certiorari in Trunk v. City of San Diego is here.  The case involves the public display of a large cross, first erected in 1913 and replaced several times, atop a large hill called Mt. Soledad in La Jolla, California.  The latest cross was erected in 1954 and dedicated by the Mt. Soledad Memorial Association “as a memorial to American service members and a tribute to God’s ‘promise of everlasting life.'”  A well-crafted and highly particularistic opinion of a panel of the Ninth Circuit (McKeown, J.) held that the cross violated the Constitution, but its language tried mightily to negotiate around some fairly contrary expressions in Justice Kennedy’s opinion for the plurality in Salazar v. Buono.  Judges Bea, O’Scannlain, Tallman, Callahan, and Ikuta dissented from the denial of en banc review.  In his dissenting opinion, Judge Bea noted the key language from Justice Kennedy’s Buono opinion:

[T]he District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

Posted on by Marc O. DeGirolami

What Makes a Burden Substantial?

Under the terms of the Religious Freedom Restoration Act, courts engage in a kind of burden shifting framework.  The burden is initially on the religious claimant to make out a prima facie case that whatever the government has done has imposed a “substantial burden” on its religious beliefs and/or practices.  If it can do this, the burden shifts to the government to show that the substantial burden is justified by a compelling interest and that it has used the least restrictive means to achieve its compelling interest.

There has been some discussion about what it is that would make a “burden” qualify as “substantial” under RFRA.  It seems to me that the gravity of a burden is frequently intimately connected with the centrality, or importance, of the belief that is felt to be burdened: the more central, or important, the religious tenet or view, the greater the obligation that the claimant will feel in adhering to it, and the more substantial will be the burden felt by the claimant in having to endure not adhering to it.  Yet RFRA eliminated the inquiry into centrality.  That decision was, I think, intended to prevent courts from making judgments about (a) how important a belief was, in order to determine (b) how severe or substantial the burden was.  One reason for eliminating the centrality inquiry was an establishmentarian concern; another was a concern about competence.  

The difficulty is that the standard continues to be a “substantial” burden.  That cannot only mean a burden as to which a claimant sincerely objects on religious grounds.  But how would one determine a burden’s substantiality without being permitted to inquire at all about a belief or practice’s centrality, or importance?  I’m not even sure what the inquiry would look like.  And that may be why, in the RFRA case law, one tends to see a great deal of deference to the claimant about what constitutes a “substantial” burden in the first place (and cases often get resolved under the compelling interest leg) — exactly because of the danger that an inquiry into the burden’s gravity, or substantiality, can easily bleed over into an inquiry about the belief or practice’s centrality, or importance, within the religious system.  Sometimes one sees the statement that a substantial burden is one where the state puts “substantial pressure on an adherent to modify his behavior and to violate his beliefs.”  Thomas v. Rev. Bd.  But that only seems to restate a kind of subjective test — how much pressure is “substantial pressure” will depend upon an inquiry about the nature of the coercion felt by the claimant in light of the religious belief’s importance to the claimant.  Pressure only matters if the belief is religious (not generally a question) and about something important…or central.  That is, a claimant is sensitive to pressure if government is squeezing a pressure point.  But because centrality is no longer a cognizable concern, we are necessarily left with a healthy measure of deference to the claimant’s feelings about the quality of the burden.

Posted on by Mark Movsesian

God’s Candidate

In December, we posted about the Russian Orthodox Church’s expressions of support for protests against the results of parliamentary elections, widely seen as fraudulent, that returned Vladimir Putin’s United Russia party to power. At the time, we noted, some observers said the Church’s support was actually strategic, a political device meant to help Putin by co-opting the protests before they went too far. Some evidence for that analysis: this week, Putin traveled to the Danilov Monastery, headquarters of the Russian Orthodox Church, to receive the endorsement of Orthodox Patriarch Kirill. According to reports, the Patriarch told Putin that his time in charge of Russia had been a “miracle” for the Church and the country. In return, Putin told the Patriarch that the Church deserved more time on Russian television. Other religious leaders also gave their endorsement at the meeting, including Russia’s chief rabbi and the head of  Russia’s council of muftis. “Muslims know you,” the latter told Putin. “Muslims trust you. Muslims are wishing you success.” Nice when religious leaders can find common ground like this.

Posted on by Marc O. DeGirolami · 3 Comments

Parsing the Administration’s New Position in the HHS Controversy

The Administration says this in its announcement:

Under the new policy to be announced today, women will have free preventive care that includes contraceptive services no matter where she [sic] works.  The policy also ensures that if a woman works for a religious employer with objections to providing contraceptive services as part of its health plan, the religious employer will not be required to provide, pay for or refer for contraception coverage, but her insurance company will be required to directly offer her contraceptive care free of charge.

And some of the bullet points say this:

o Religious organizations will not have to provide contraceptive coverage or refer their employees to organizations that provide contraception.

o Religious organizations will not be required to subsidize the cost of contraception.

o Contraception coverage will be offered to women by their employers’ insurance companies directly, with no role for religious employers who oppose contraception. 

o Insurance companies will be required to provide contraception coverage to these women free of charge.

Some thoughts after the jump.

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Education & Belief: Citizenship

“A high level of shared education is essential to a free, democratic society and to the fostering of a common culture, especially in a country that prides itself on pluralism and individual freedom.” (A Nation at Risk, 1983)

One of the main justifications for a uniform system of schooling, first articulated by Horace Mann and others in the 1830s and ‘40s, is that a common educational experience is necessary to make one people out of a nation of immigrants with different languages, religions and cultures.

Forming democratic citizens capable of self-rule had been a goal of education since Revolutionary times. Nearly all of the Revolutionary leaders wrote about the important role of a liberal arts education in encouraging attachment to republican principles and in energizing social mobility. Many of them opened schools and designed curricula for this purpose, resulting in high rates of literacy in the former colonies, particularly in New England (Pangle & Pangle in The Learning of Liberty). Mann’s contribution was to argue that state-enforced uniformity could do this more efficiently than the ad hoc network of schools that prevailed in his day.

The drive for uniform, state-sponsored schooling initially was resisted on political and religious grounds. However, as the 19th century progressed, the United States experienced large-scale immigration of European Catholics. Read more

Posted on by Marc O. DeGirolami

An Uncertain Development in the HHS Mandate

As Mark reports below, President Obama announced this afternoon that the Administration is reversing the decision to require religious employers to pay for health plans which cover contraceptives and abortifacients.  The insurers will instead be required to cover them for free.  [UPDATE: I have amended the title of this post and stricken out the material above because at this point, given the first question that I raise below, I am deeply uncertain exactly what this change means.  More soon.]  There remains the issue of what the religious institutions will be required to tell their employees about the availability of these products and services.

ADDENDUM: Some additional questions beyond the issue of what religious institutions will need to say to their employees about the availability of contraceptives through their insurer: (1) Won’t the insurer simply pass the cost of the products and services which it is being compelled provide onto the insureds, including the religious institutions?; (2) What happens when a religious institution is self-insured?; (3) Exactly who qualifies for exemption under the rule?

Posted on by Mark Movsesian

Contraceptives and the Complexities of American Catholicism

There’s word this morning that the Obama Administration plans to announce a compromise on the new HHS regs that require religiously-affiliated entities to cover contraceptives, sterilization, and abortifacients in employee health insurance plans. (When stories start to leak about how the Vice President opposed the regs, you know the White House is in political trouble). It’s not clear what the compromise is, exactly, or whether it will satisfy religious leaders.

For the moment, though, I’d like to focus on something this crisis reveals about American Catholicism. Some proponents of the HHS regs have been shocked at the negative reaction from many American Catholics, large numbers of whom use artificial birth control. Surely Catholics who use artificial birth control should have rallied to the Administration’s side. As Ross Douthat points out in an insightful column, however, religious belief and practice are rarely so clear-cut. One should not, he says,

gloss[] over the complexities of religious faith and practice, which ensure that many Catholics’ relationship to the teachings of their Church is more complicated than a simple “agree or disagree.” There are Catholics who accept the Church’s view on contraception but simply don’t live up to it. There are Catholics who respect the general point of the teaching while questioning its application to every individual case…. There are many American Catholics, as Daniel McCarthy noted in a perceptive interview recently, who are neither devout nor dissidents — Catholics who practice their faith intermittently, drifting away and then being tugged back, without having any particular desire to see its teachings changed to suit their lifestyles. And then there are Catholics (and this is a large category) who do explicitly dissent from Church teaching, but who also don’t want to see secular governments set the rules for what Catholic institutions can and cannot do…. If this issue a matter of conscience only for the “formal hierarchy of the Catholic Church,” then why is the White House taking so much criticism from Catholics with a reputation for disagreeing with the hierarchy — from Commonweal Catholics and National Catholic Reporter Catholics, from famous Catholic liberals like E.J. Dionne and Chris Matthews, Catholic Democrats like Tim Kaine and Bob Casey, Jr., and so on? The answer can’t be that they’re all afraid of the bishops, since we’ve just established that most Catholics don’t agree with the bishops on this issue. Something else is going on here.

“Neither devout nor dissident” — that phrase probably captures the way most people feel, most of the time, about their faith traditions. It surely describes many American Catholics today. When one takes into account the complex social reality of American Catholicism, and the still-profound sense Americans have that government should not interfere with religious conscience, the reaction to the new HHS regs is not too surprising, after all.