Richard Epstein and Me on the Freedom of Association and Antidiscrimination Measures

Over at the Library of Law and Liberty blog, the formidable Richard Epstein (NYU/Chicago) has a long essay titled, Freedom of Association and Antidiscrimination Law: An Imperfect Reconciliation.

It was an honor to respond to Professor Epstein’s essay in this comment, in which I investigate some causes of the classical liberal retreat. Other responses by Professor Andrew Koppelman and Professor Paul Moreno will follow. A bit from the beginning of mine:

Professor Richard Epstein has performed a welcome service in reminding us of the classical liberal case for the freedom of association. The classical liberal champions the primacy of rights as guarantors of the individual’s sovereignty to make free dealings with other sovereigns. He values rights as safeguards of the freedom to make moral and economic choices, to unite with others of like mind, and promptly to divest when the benefits of union are no longer perceived. He distrusts rights as claims for the imposition of obligations that override others’ sovereignty, reserving such mandates for special cases—force and fraud, as well as monopolistic control.

As Epstein has incisively noted elsewhere, discriminating associations are features of well-ordered societies in which people disagree about the good life, much as discriminating palates are features of well-ordered societies in which people disagree about good taste.[1] Association implies discrimination; to include some is to exclude others. Discrimination is legally wrongful only when it completely blocks a class of persons from access to a particular set of commoditized goods and services. But it is not legally wrongful if such persons feel the offense of exclusion but still can access alternative market channels. Respect for rights is supposed to limit the power of the state, not enhance it. All this is an appealing view of associational freedom in many ways.

Why, then, is this view so much in retreat? For it is today in open and full retreat. As Epstein’s Liberty Forum essay shows, the scope of antidiscrimination law, and the zeal with which it is enforced, have greatly increased over the last few decades. The power of government to mandate proliferating and ever more rigorous norms of equality has accelerated and shows no signs of abating. More perplexing still is that a significant and growing number of Americans, especially those in elite circles (including in younger generations), have acquired a wolfish appetite for measures that contract First Amendment freedoms and swell the state’s power to stamp out discrimination of increasingly recondite varieties wherever they may exist. Epstein notes all this and rightly laments it. But he does not explain it.

What happened to the libertarian, economically-inflected, live-and-let-live vision of the freely associating society?

Many things that this brief response to Epstein cannot comprehensively catalog. Yet one explanation for the classical liberal retreat lies in its failure to account for the psychologically affective features of law—and in particular its blindness to the influence of its own marketized and contractualized conception of First Amendment freedoms, including associational freedom, on the civic virtues and ideals of the citizenry. Law gives direction; it teaches, orders, and ranks; it creates hierarchies. The classical liberal model of law is no exception.

Call for Papers: “Freedom of/for/from/within Religion: Differing Dimensions of a Common Right?”

The Fourth International Consortium for Law and Religion Studie Conference will be held at St. Hugh’s College in Oxford September 9-10, 2016. The Conference topic — “Freedom of/for/from/within Religion: Differing Dimensions of a Common Right?” — aims at considering the fundamental right of freedom of religion from differing perspectives, shedding light on its various and interconnected facets and addressing new challenges it faces in the modern world.

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If you are interested in contributing, please submit a 200-300 word abstract (in English) of your proposed presentation by e-mail to: cristiana.cianitto@unimi.it by March 31, 2016.

Further details are available here.

O’Connor, “Mixtec Evangelicals”

In March, the University Press of Colorado will release “Mixtec Evangelicals: Globalization, Migration, and Religious Change in a Oaxacan Indigenous Group,” by Mary I. O’Connor (University of California, Santa Barbara).  The publisher’s description follows:

Mixtec Evangelicals is a comparative ethnography of four Mixtec communities in Oaxaca, detailing the process by which economic 4cd424ae582c0816d2a216de8e1edde7_smigration and religious conversion combine to change the social and cultural makeup of predominantly folk-Catholic communities. The book describes the effects on the home communities of the Mixtecs who travel to northern Mexico and the United States in search of wage labor and return having converted from their rural Catholic roots to Evangelical Protestant religions.

O’Connor identifies globalization as the root cause of this process. She demonstrates the ways that neoliberal policies have forced Mixtecs to migrate and how migration provides the contexts for conversion. Converts challenge the set of customs governing their Mixtec villages by refusing to participate in the Catholic ceremonies and social gatherings that are at the center of traditional village life. The home communities have responded in a number of ways—ranging from expulsion of converts to partial acceptance and adjustments within the village—depending on the circumstances of conversion and number of converts returning.

Presenting data and case studies resulting from O’Connor’s ethnographic field research in Oaxaca and various migrant settlements in Mexico and the United States, Mixtec Evangelicals explores this phenomenon of globalization and observes how ancient communities are changed by their own emissaries to the outside world. Students and scholars of anthropology, Latin American studies, and religion will find much in this book to inform their understanding of globalization, modernity, indigeneity, and religious change.

Adams, “Black Women’s Christian Activism”

In February, the New York University Press will release “Black Women’s Christian Activism: Seeking Social Justice in a Northern Suburb,” by Betty Livingston Adams (New York University).  The publisher’s description follows:

When a domestic servant named Violet Johnson moved to the affluent white suburb of Summit, New Jersey in 1897, she became one of just 9780814745465_fullbarely a hundred black residents in the town of six thousand. In this avowedly liberal Protestant community, the very definition of “the suburbs” depended on observance of unmarked and fluctuating race and class barriers. But Johnson did not intend to accept the status quo. Establishing a Baptist church a year later, a seemingly moderate act that would have implications far beyond weekly worship, Johnson challenged assumptions of gender and race, advocating for a politics of civic righteousness that would grant African Americans an equal place in a Christian nation. Johnson’s story is powerful, but she was just one among the many working-class activists integral to the budding days of the civil rights movement.

In Black Women’s Christian Activism, Betty Livingston Adams examines the oft overlooked role of non-elite black women in the growth of northern suburbs and American Protestantism in the first half of the twentieth century. Focusing on the strategies and organizational models church women employed in the fight for social justice, Adams tracks the intersections of politics and religion, race and gender, and place and space in a New York City suburb, a local example that offers new insights on northern racial oppression and civil rights protest. As this book makes clear, religion made a key difference in the lives and activism of ordinary black women who lived, worked, and worshiped on the margin during this tumultuous time.