First Things Supreme Court Roundup: “Kennedy’s Last Term”

Kevin Walsh and I have this year’s Supreme Court roundup at First Things: Kennedy’s Last Term. In the piece we cover some of the major decisions of the last term, including First Amendment cases (Masterpiece, NIFLA, Janus), cases concerning what we call “the influence of social, technological, and moral change on Supreme Court doctrine” (Wayfair, Carpenter, Murphy v. NCAA), and political gerrymandering/judicial limits cases (Gill, Benisek), as well as a short comment on Trump v. Hawaii. 

Something from the conclusion:

What, then, should we expect from the post-Kennedy Court? Perhaps more of the same. There was not a single 5–4 decision this term in which Justice Kennedy joined with the more liberal wing of the Court. That has never before happened on the Roberts Court. And there were fourteen 5–4 cases in which Kennedy joined with the four more conservative justices to form a majority, including First Amendment cases such as Janus and NIFLA, separation of powers cases like Trump v.Hawaii, political process cases involving political and racial gerrymandering, and a range of statutory interpretation and business cases. This record suggests that, should Judge Brett Kavanaugh be confirmed, we ought to expect a fair amount of continuity rather than radical change.

But in other major areas—areas that happen not to have been addressed this term—the change may be more substantial. Consider, for example, the constitutional law of abortion. Here, Kennedy’s replacement might make a difference, particularly if there is a possibility that a Justice Kavanaugh might join with four colleagues in ending the regime of constitutional abortion law initiated by Roe v. Wade.

Social conservatives have been disappointed before. The Court’s first major abortion case after Justice Kennedy joined the Court was the 1989 decision Webster v. Reproductive Health Services, where it seemed there might be five votes to overrule Roe. Chief Justice William Rehnquist wrote an opinion for four justices that purported to “modify and narrow” Roe, but Reagan-nominated Justice Sandra Day O’Connor went her own way, introducing the “undue burden” standard that has remained the law until today. Scalia, meanwhile, lamented that this missed opportunity to reverse Roe meant that “the mansion of constitutional abortion law, constructed overnight in Roe, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.” Scalia was farseeing. Four years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, Kennedy joined with O’Connor and Justice David Souter to preserve what they called “the central holding” of Roe.

We are guardedly optimistic that Kavanaugh’s confirmation will eventually result in the rejection of Roe v. Wade. But nobody should expect a quick or complete demolition of constitutional abortion rights. Caution is in order because of both internal Court dynamics and external pressure on the ­institution.

The shift on the new Court should be measured not by the distance between Kennedy and ­Kavanaugh, but between Kennedy and Roberts. On a multi-member Court, the views of the median justice matter most in the close cases implicating the culture wars. And Roberts cares deeply about public perceptions of the Court’s legitimacy. The same concerns that motivate Roberts to embrace minimalism more broadly, as in the cases this term about partisan gerry­mandering and sales taxes, will likely mean even greater caution in these hotter and angrier areas of constitutional law.

Neither should we forget that the result of overruling the Roe/Casey regime is no panacea. It would simply lift restrictions on state legislation. But that is hardly always desirable. We can surely expect some, perhaps many, states to follow the lead of Massachusetts, where legislators passed a NASTY (Negating Archaic Stereotypes Targeting Young) Women Act that repealed abortion restrictions that might in theory have come back into force if Roe/Casey were overturned. New York’s governor has made extensive abortion rights a rallying cry of his campaign for reelection.

Just as the damage done by Roe/Casey is not exclusively legal, neither will it be undone by legal means alone. The Court and dominant cultural opinion shape each other, and the arrow of influence runs in both directions. However much “the mansion of constitutional abortion law” may be dismantled, the constitutional rot at its foundation is the result of powerful cultural forces. Let us not put our trust in judges any more than princes, not only because they are fallible, but also because judges are meant to judge, not to save us from ourselves.

The Proper Response to the Crisis in the Catholic Church: Give the Laity a Role in the Appointment and Removal of Diocesan Bishops

 

consecration of st ambrose as archbishop (1)

The Consecration of Ambrose as Bishop of Milan (Juan Valdes-Leal, 1673)

 

By Robert Delahunty* & Andrew Ratelle**

The past few weeks in the life of the Catholic Church in America are proof of a twelfth century English proverb that “often the end fails to equal the beginning.”

What began some fifteen or more years ago as a series of promised reforms, compounded with yet more promises, has made a full circle return to the point of origin. A prince of the Church has been caught yet again in deeply hypocritical, sinful, and, if not for statutes of limitation, tortious and even criminal behavior. But this time, a coterie of fellow bishops and peers is gathered about him, unable or unwilling to see where the line between charitable forbearance and public condemnation must be drawn. According to the New York Times:

Between 1994 and 2008, multiple reports about the cardinal’s transgressions with adult seminary students were made to American bishops, the pope’s representative in Washington and, finally, Pope Benedict XVI. Two New Jersey dioceses secretly paid settlements, in 2005 and 2007, to two men … for allegations against the archbishop.

And now comes the news of a Pennsylvania grand jury’s findings that in six of the State’s eight dioceses, bishops and other clerical leaders concealed at least one thousand identified cases of child sexual abuse for a period of over seventy years. The grand jury wrote:

“Despite some institutional reform, individual leaders of the church have largely escaped public accountability.” …  “Priests were raping little boys and girls, and the men of God who were responsible for them not only did nothing; they hid it all. For decades.”

This is indeed “a spiritual crisis” that cuts deeper with every revelation. It is a “crisis” that goes much deeper than the episcopate seems competent or willing to handle.

The Catholic laity must assume far greater responsibility for the conduct of their bishops and priests, and the hierarchy must give them the tools to do so. Below, we outline a series of lay-led initiatives, ranging from least to most radical, for a project of reform. Most importantly, we recommend that the laity have a greater role in the appointment and removal of diocesan bishops.

The Failure of the Hierarchy

The unfolding story of Cardinal McCarrick’s decades of sexual predation is both dismal and familiar. But those disclosures are not the most dismaying part of the current crisis. What makes the McCarrick matter different is the unbelievable lameness of his fellow bishops’ excuses for their repeated failure to challenge him. Loyal Catholics have been driven to the conclusion that their Church’s hierarchy is utterly compromised. It has proven itself unfit to perform the urgent task of dealing with the rot that it has allowed to fester in its own ranks. The bishops— “good” and “bad” alike—have betrayed the faithful.

In addition to sexual abuse, there are two problems here. One problem is the continuing influence of “bad” bishops, willing to use their power to protect abusers, to promote them, and to marginalize those who would denounce them. The other problem is the silence (or at least the shrugging of the shoulders) of “good” bishops, unwilling to condemn the corrupt practices of their peers. This silence is not always intentional complicity, but it is close enough—a distinction with no real difference.

The American Church, it seems, has its own version of the Deep State, committed to obstructing genuine reform and to punishing those who question its authority.

For the Church to respond to this threat, the laity must now do what the bishops ought to have done years—decades—ago.

We are not talking only about the investigation and correction of priests and bishops who are guilty of sexual abuse. The Church has always had such priests, and canon law structures—though under-enforced—have long been in place to correct them. Clerical sexual abuse is the primary problem, but it is not the only one.

The real task ahead is instead to devise and implement processes, in which lay participation is extensive, that will police the bishops as they ought to have policed themselves. Investigation and punishment of abuses are not enough. It is essential to develop institution-wide remedies. The crisis in the Church is a structural or Continue reading

Kavanaugh (and Kennedy) on Church and State

Judge_Brett_KavanaughAt the Law and Liberty Blog today, I have an essay on how a Justice Kavanaugh would likely rule in church-state cases. I argue he is likely to look a lot like Justice Kennedy, the person he would replace:

It’s always difficult to predict how a nominee would rule in cases once on the Court. The best evidence is the way he has ruled as a lower court judge—and even that evidence is imperfect, since lower court judges have a greater duty than Supreme Court Justices to follow the Court’s precedents. Although he has been on the DC Circuit for a dozen years, Kavanaugh has written only two opinions on the merits in church-state cases, one on establishment and the other on free exercise. (He has written one opinion dismissing an Establishment Clause challenge on standing grounds and joined a few church-state opinions other judges have written, but those opinions are less probative). On the basis of those two opinions, I think Justice Kavanaugh would likely be a centrist conservative in the middle of the Court—a Justice remarkably like the one he would replace.

You can read the whole essay here.

Implications of the Umpire Analogy in Judge Kavanaugh’s Scholarly Writing

Judge Brett Kavanaugh’s scholarly writing repeatedly raises the now well-known umpire analogy and emphasizes the aspiration to judicial “neutrality.” I focus here on law reviews, and in particular some of his later pieces on statutory and constitutional rights interpretation, leaving the earlier separation of powers pieces to others.

For example, in his review essay, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (reviewing CJ. Robert Katzmann’s book on statutory interpretation), he wrote: “The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges.” Likewise, in Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017), Kavanaugh said this: “I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case.” And he has a third short piece, The Judge As Umpire: Ten Principles, in a recent issue of the Catholic University Law Review.

It’s a metaphor that has been used and criticized before. Perhaps the most prominent relatively recent example is in the confirmation hearings of CJ. John Roberts, who was also fond of the metaphor. But I think Judge Kavanaugh means something fairly specific by it, and that it has more concrete implications for the way in which he believes the prevailing methods of statutory and constitutional interpretation are flawed and should change.

Statutory Interpretation

Kavanaugh’s primary objection in this area does not involve the issue of textualism and purposivism. He is quite clear that he is a textualist, and he notes in his review essay that CJ. Katzmann also claims to be a textualist. Instead, his objection concerns the binary of clarity and ambiguity. He raises two problems (previously discussed by Professor Ward Farnsworth): (1) how clear must the text be to be deemed clear? 80% clear? 50% clear? Less? More? (2) how does a judge know what level of clarity a text actually has achieved? Because these threshold issues are indeterminate, the interpreting judge has too few rules for getting to the point where he can determine which of the two binaries–clear or ambiguous–to settle on. Kavanaugh argues that in consequence a judge’s predisposition toward textualism or purposivism does the work here. It orients the judge either toward or against finding ambiguity, and then it’s off and running with the substantive canons of interpretation.

Kavanaugh offers a solution this threshold issue: rather than forcing the judge to choose one of the two binaries from the get-go, he argues that the judge should offer her “best reading of the statute,” guided by some semantic canons and context. There are some problems with this proposal, in my view, primary among which is that I am uncertain that this sort of approach solves the issue of predisposition toward textualism or purposivism. An example: Kavanaugh does not care for the semantic canon, eiusdem generis, which holds that the last general term in a sequence should be interpreted in light of previous, more specific terms (“dogs, pigs, sheep, and other animals” should be read to include pigs and horses but not amoebas and tapirs). Kavanaugh says that “other animals” should instead mean any or all other animals, and to apply eiusdem generis allows a judge to, as Justice Kagan put it, take it upon herself to find the “common denominator.” But I’m not sure I agree on the merits, and at the very least I think this example illustrates some problems with Kavanaugh’s “best reading of the statute” approach, one which he agrees must make use of context.

The point of this post, though, is to connect his substantive comments to his larger umpire analogy. The trouble with the current binary regime of clarity/ambiguity is that it is does not offer judges sufficiently clear, basic rules for interpreting statutes. It does not stimulate judges to aspire to neutrality. It instead stimulates the opposite: a smuggling in, under the pretense of simply “finding” clarity/ambiguity, of the judge’s predispositions toward textualism or purposivism. And judges are also seen to be doing that smuggling by the general public.

Constitutional Interpretation

Kavanaugh makes a parallel criticism of constitutional interpretation. Here, one of his primary targets is the tiers of scrutiny in the evaluation of individual rights as against government interests. The problem with the 1950s-era invention of the tiers of scrutiny (substantial burdens, compelling interests, rational bases, narrow tailoring, etc.) is that they are, at best, “rather indeterminate,” and at worst, “empty of real, determinate, objective meaning.” They offer no, or very little, transparent guidance to the judicial interpreter. At best, they are “mood-setters.” And the mood that they set is the mood the judge happens to be in about the right at issue. So that judges applying these standards are invited to smuggle in other reasons for ruling as they do. And they are seen to do so by all of the rest of us, since it is in the nature of the tiers to push judges in this direction.

Or consider the issue of exceptions to certain constitutional rights–the right to free speech, for example, or the right to keep and bear arms. Is it any surprise, says Kavanaugh, that the tiers of scrutiny can offer no help in resolving when to find such exceptions? Worse still, is it any surprise that when judges apply the tiers of scrutiny purportedly to find exceptions to constitutional rights, they are doing so in ways that are, and appear to be, non-neutral–non umpire-like? There are other judges who have made similar claims about the tiers (see, most recently, Justice Thomas’s dissent in Whole Woman’s Health v. Hellerstedt). But one can see a critical unity in Kavanaugh’s objections to the prevailing methods of statutory and constitutional interpretation: both suffer from the same problems and need similar correctives.

Unlike in the statutory interpretation context, Kavanaugh does not offer a developed solution to this problem. But perhaps the most interesting part of his argument (to me, at least) is his view that it would be preferable to rely on historical and traditional limits on particular rights to find exceptions than to rely on the tiers of scrutiny to do so. He says: “At the moment, I do not have a solution to this concern. Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike zone for these “exceptions” cases.” And his Second Amendment dissent in Heller v. DC (DC Cir 2011) suggested just such an approach. He also raised “history and tradition,” together with “precedent,” as important for his judicial method in his acceptance last night.

We’ll have to wait and see if and how these threads come together if he is confirmed.

Happy Independence Day

To our readers, Mark and I wish you a happy Fourth of July!

An independence from Great Britain. And a dependence and reliance on one another, as Benjamin Franklin recognized in his hanging together/hanging separately quip, made at the signing of the Declaration of Independence. (I have privately wondered whether we might find some space for a “Dependence Day” somewhere in the American calendar…below is a book that might give the holiday creators some inspiration.)

MacIntyre

Some Reflections on Animus and “Adjudicatory Bodies”

Another slightly longer thought on the Masterpiece Cakeshop decision. Many were interested to see how the role of “animus” might affect the outcome in the case, and specifically the free exercise leg of the case. Animus played a starring role. Animus mattered in two ways: (1) the favorable treatment given by the Commission to claims against other bakers who “objected to a requested cake on the basis of conscience” (this was said by the Court to be an “indication of hostility” to Phillips); and (2) the comments of certain commissioners felt by the Court to evince hostility to Phillips’ religious views, comments which were never subsequently disavowed (more evidence of animus).

I confess that as to the second category, the Court makes some comments that are genuinely puzzling to me. For example, the Court says that the following statement by one Commissioner was susceptible either of a neutral reading or of a reading suggesting “animus”: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” In light of the later comments of a different Commissioner, the Court decided that the animus reading “seems more likely.” I really don’t understand this. The Commissioner here was offering the view that when somebody goes into business, the ambit of their religious exercise rights may be different than when one does not go into business, such that the person may have to “compromise.” Like it or not, the antidiscrimination law seems to suggest as much. And why should the comments of a second Commissioner, offered later, suggest that the first Commissioner’s comments were hateful? I wonder if the Court’s approach has the effect of inducing the members of adjudicatory bodies not to say a word, and perhaps even to keep their written dispositions as short and inscrutable as possible. If even predictive evaluations of the strength of the claims suggest animus, that seems to be quite an expansion of an already sweeping concept.

And speaking of “adjudicatory bodies.” In describing the state of jurisprudential play with respect to “animus” evidence, the Court said this:

Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case.

The Court seems to be acknowledging that not everybody that agreed on the disposition in Lukumi signed on to the “animus” discussion. Indeed, the “animus” discussion in Lukumi did not get a majority of the Court. But here it does: it gets 7 votes. Why the difference?

The explanation offered here seems to be that Lukumi dealt with “lawmakers” while this case deals with the “very different context” of “adjudicatory bod[ies] deciding a particular case.” It is true that in the following section of the opinion, the language about “adjudicatory bodies” does not reappear as a limitation. When the Court again cites to Lukumi for the proposition that “the government’s” “neutrality” may be evaluated by looking to “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body,” we do not see more language about adjudicatory bodies.

But the application of these factors in this case to an adjudicatory body which ruled on this particular case–the Commission–does appear just after the enumeration of these factors, and there is no suggestion that the scope of animus analysis goes further than that. Indeed, taken together, the statements may suggest that there is a new majority for the sort of “animus” analysis that did not get a majority in Lukumi, but only when one is dealing with “adjudicatory bodies deciding a particular case.”

If that reading is right (and it of course may not be), what could explain a new, special animus rule for “adjudicatory bodies”? Admittedly this is speculation, and I don’t have a firm answer in the least. But perhaps it is the particularism of adjudication. When a court expresses hostility to the litigants in front of it, and those comments directly influence the outcome of the litigation, there is a closer nexus between the animus and the specific result than is the case when a legislative body makes a general law affecting persons that are neither before it nor even specifically identified (incidentally, how this works out in the Executive context is entirely unclear to me). So that to the extent that one has qualms about the vagueness of animus analysis–its susceptibility to manipulation, for example–those qualms may be relieved to some extent by the particularized focus on a specific litigant, in a specific litigation, whose outcome is determined by the adjudicator right in front of that litigant.

Again, just a speculation. We’ll see how, if at all, the “adjudicatory bodies” language is picked up by future cases, and whether we now have a special animus rule for a particular set of government actors.

7-2 is the new 5-4*

Lots will be written about the decision today in Masterpiece Cakeshop. Here is something small. I was struck by another 7-2 decision in a religious freedom case. The individual justices’ voting patterns in those cases are fairly uniform too. Hobby Lobby was 7-2 on the question of corporate personhood under RFRA (JJ. Sotomayor/Ginsburg in dissent). Trinity Lutheran was 7-2 (JJ. Sotomayor/Ginsburg in dissent). And now Masterpiece Cakeshop is 7-2 (JJ. Sotomayor/Ginsburg in dissent). Many, but not all, of these decisions feature concurrences by JJ. Kagan and/or Breyer. In addition, both Holt v. Hobbs and Zubik v. Burwell, though unanimous as to outcome, featured pointed concurrences in a 7-2 pattern (JJ. Sotomayor/Ginsburg in concurrence).

The asterisk above is for Establishment Clause cases, the last of which was Town of Greece v. Galloway in 2014. Those always tend to return us to the more familiar 5-4 configuration.

The End of “Religion as a Good”: Thoughts on Movsesian and Garnett

Mark has a thoughtful piece over at First Things, in which he argues that the association of religion in America with particular political parties is becoming more pronounced. Mark makes the point that, increasingly, “a new sort of divide appears to be opening up in American politics: Republicans are the religious party, and Democrats are the non-religious party.” He cites Tocqueville for the view that while in Europe, everyone understood that religion and republicanism were enemies, that was not the case in America where, notwithstanding religious differences, Americans have never had religious and non-religious parties in the same way. But that is now changing, Mark claims, citing a Pew Center survey indicating that there is increasingly a correlation between belief in God and party affiliation (Rs believe much more than Ds).

The piece may be read profitably alongside this article about the introduction of the new “Do No Harm Act” by various Senate Democrats, whose object is to narrow the protections of the Religious Freedom Restoration Act, especially as a defense against the operation of “others’ civil rights.” It appears that the civil right of religious liberty would take second place to any other civil right under the proposed statute. Rick Garnett offers the view in the piece that the Act “reflects a mistaken view that religious freedom should only be granted when it is costless.” The story goes on to say that “since the bill is highly unlikely to pass, without Republican support, its purpose is in large part simply to announce Democrats’ priorities to voters before the midterm elections in the fall.” (this opinion is attributed to Charles Haynes of the Newseum)

The story seems to support Mark’s view that religion is becoming politicized along party lines. RFRA, after all, passed with very strong bipartisan support in 1993. Its aim was to protect religious freedom for all. But, so the argument might go, today the breakdown of support for RFRA, and the efforts to shrink it (and, eventually, perhaps to repeal it), demonstrate the fragmentation of support for religious freedom along party lines. Rs support religious civil liberties. Ds support other civil liberties.

I’m not sure this account is accurate. At the very least, it does not account for the way in which many progressives have thrown their support against, for example, the Trump Immigration order and in favor of Muslim immigrants. It does not account for at least some progressive support for the expansion of religious freedom to include non-traditional “religious” groups such as the Nones and other conscientious believers. It does not account for progressive support for at least some of the Court’s recent religious liberty cases, such as Holt v. Hobbs.

My own view is that we are witnessing the end of the period in which “religion” is seen to be a general good, and therefore in which “religious” freedom ought to be protected for that reason. I have written before about the vacuity and ultimate unsustainability of the category of “religion” in contemporary American law, and so I do not think it is particularly surprising to see this development. But that does not mean that one party is the party of “religion” while the other is the party against “religion.” It means that “religion” as a conceptual category thought, in general, to be worthwhile, and “religious freedom” as a right generally worth supporting, is moribund (there are reasons it is dying off, which I discuss in the piece).

Instead, what is emerging in the partisan fragmentation is that the Rs and Ds are becoming the parties of particular religions and religious traditions. Rs are in general more sympathetic to traditional Christian religious beliefs (in general, of course…there are prominent exceptions at the highest levels of government), while Ds are in general hostile to them–believing that Christians in particular “impose” their views (particularly their views about sexuality) on others in the name of Christianity. Ds are in general more sympathetic to religious views that are not traditionally Christian (indeed, one might even say that the Nones represent a distinctively modern Christian heresy, but that’s a subject for a different post) or that they associate with minority groups that they believe warrant special protection, while Rs are in general hostile to them. The reason that Senate Ds sponsor the No Harm Act is that they oppose the right of traditional Christians to use their views about sexuality to discriminate against LGBT people (I am putting it polemically, of course). The reason that Senate Rs oppose the Act is that they disagree. None of this has much at all to do with “religion” as an abstract category.

Perhaps if we had more parties in this country than the usual dreary duo (something to be fervently wished for, but that is also for another post), we would see even more fragmentation. But the growing divisions between our existing political parties along these lines reflect preferences for certain kinds of religion over others, not religion as such. They are both religious parties. The place of the specific religious tradition (or, in the case of the Nones, view) in American public life, its substantive positions (particularly as respects sexuality), its market strength, its “other-ness”–all of these and more are true markers of partisan support or opposition. What has changed politically is the notion that religion qua religion is worth protecting as an American good. And, in light of the incoherence of the category in American law and politics, small wonder that it has.

Some Thoughts on Our New Religious Politics

At the First Things site, I have an essay on the religious divide opening up in American politics, between Democrats and Republicans. Based on the increasing number of Nones among party members, Democrats are becoming the non-religious party, and Republicans the religious party. This divide would have been unknown at earlier periods of our history; Tocqueville, for example, famously commented on the absence of religious division in American politics. I predict what our new religious politics may mean for religious liberty. Here’s a snippet:

In short, a new sort of divide appears to be opening up in American politics: Republicans are the religious party, and Democrats are the non-religious party. This new divide may not be stable, of course. The racial and ethnic divisions among Democrats, which closely track the divide between the religious and the non-religious, may cause fissures within the party. African-Americans and Hispanics may press white progressives to make more room for traditional believers. And over time, Nones may make headway in the Republican Party. If current trends continue, though, religion will become a marker of political difference in a way it never has been before.

The new religious divide seems likely to make American politics even more bitter than it already is, particularly with respect to religious liberty. People’s commitment to religious liberty depends on whether they think religion is, on balance, a good thing for individuals and society. If people come to see religion as an obstacle rather than an aid to human flourishing, they are unlikely to sympathize with calls for the free exercise of religion. By definition, Nones reject traditional, organized religion as harmful or, at least, unnecessary. Their growing dominance in the party suggests that arguments in favor of religious freedom will have less and less appeal for Democrats. The divide is likely to be self-reinforcing, as Democrats come to see religious freedom as something only the other party cares about—and therefore something to be resisted. If Tocqueville came back to visit America today, he might not be so surprised.

You can read the whole essay here.

 

 

On the Future of Religious Freedom

For those who are interested, yesterday the Liberty Law site posted an essay I wrote on the possible future of religious freedom in the United States (“The Powerful Headwinds Confronting Religious Freedom“). In the essay, I describe the powerful cultural and political trends, especially religious polarization and an ever-expanding notion of equality, that make religious freedom increasingly problematic, especially for members of traditional religious groups. Here’s an excerpt:

The increasing religious polarization suggests that, unlike in the past, traditional believers cannot count on a widespread, if thin, cultural sympathy for their commitments. A large and growing percentage of Americans has no experience of traditional religion—and, to the extent it has had such experience, rejects it. Disagreements and misunderstandings are likely to be amplified by the fact that Nones overwhelmingly reject traditional teachings about sexuality, which they see as psychologically damaging and essentially unjust, an affront to the dignity of persons. It’s not coincidental that so many of our current disputes about religious liberty, like Masterpiece Cakeshop and Hobby Lobby, involve sexuality in some way.

Another cultural trend that should worry traditional believers is Americans’ expanding concept of equality. For many Americans, equality no longer means simply equality before the law. Rather, it means a rejection generally of distinctions among groups and individuals, including religious distinctions—a rejection of “difference per se.” Beliefs and practices that exclude outsiders from a religious community are presumptively suspect, because of the implicit judgments they suggest: some groups, apparently, think their beliefs and ways of life superior to others’. Such judgments seem impolite, ungenerous, and inconsistent with the spirit of true equality, which requires that each religion acknowledge the basic correctness of all the others.

The expansive notion of equality—equality as sameness—poses challenges for traditional religious groups, most of which continue to insist, as a matter of religious conviction, on maintaining boundaries with the followers of other religions. This doesn’t mean hostile relations, necessarily, only boundaries. For example, some evangelical student groups, while encouraging charity toward everyone, limit their membership to persons who share their faith commitments. Such limitations are apt to seem arbitrary and illegitimate to many Americans. In fact, a number of religious-liberty cases involve universities’ decisions to deny religiously “exclusive” student organizations access to campus.

You can read the whole essay here.

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