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Summer Fridays With Pascal (Birthday Edition): The Wager

On the occasion of Pascal’s birthday, what more appropriate way to celebrate Pascalthan to read his famous wager? Many people know vaguely that there is something called “Pascal’s Wager” as well as its general thrust. But here is some of the text in which Pascal elaborates it, collected in Pensées. 

The problem confronted by Pascal is that of doubt–doubt about the existence of God. Pascal’s Wager has been criticized extensively by later philosophers (no surprise) but it is a true classic. Note the distinctively Jansenist separation of faith and reason. From Fragment 233:

Let us now speak according to natural lights.

If there is a God, He is infinitely incomprehensible, since, having neither parts nor limits, He has no affinity to us. We are then incapable of knowing either what He is or if He is. This being so, who will dare to undertake the decision of the question? Not we, who have no affinity to Him.

Who then will blame Christians for not being able to give a reason for their belief, since they profess a religion for which they can give no reason? They declare, in expounding it to the world, that it is a foolishness, stultitiam; and then you complain that they do not prove it! If they proved it, they would not keep their word; it is in lacking proofs, that they are not lacking in sense. “Yes, but although this excuses those who offer it as such, and takes away from them the blame of putting it forward without reason, it does not excuse those who receive it.” Let us examine this point and say, “God is, or He is not.” But to which side shall we incline? Reason can decide nothing here. There is an infinite chaos which separates us. A game is being played at the extremity of this infinite distance where heads or tails will turn up. What will you wager? According to reason, you can do neither the one thing nor the other; according to reason, you can defend neither of the propositions.

Do not then reprove for error those who have made a choice for you know nothing about it. “No, but I blame them for having made, not this choice, but a choice; for again both he who chooses heads and he who chooses tails are equally at fault, they are both in the wrong. The true course is not to wager at all.”

Yes; but you must wager. It is not optional. You are embarked. Which will you choose then? Let us see. Since you must choose, let us see which interests you least? You have two things to lose, the true and the good; and two things to stake, your reason and your will, your knowledge and your happiness; and your nature has two things to shun, error and misery. Your reason is no more shocked in choosing one rather than the other, since you must of necessity choose. This is one point settled. But your happiness? Let us weigh the gain and the loss in wagering that God is. Let us estimate these two chances. If you gain, you gain all; if you lose, you lose nothing. Wager, then, without hesitation that He is.

“That is very fine. Yes, I must wager; but I may perhaps wager too much.” Let us see. Since there is an equal risk of gain and of loss, if you had only to gain two lives, instead of one, you might still wager. But if there were three lives to gain, you would have to play (since you are under the necessity of playing), and you would be imprudent, when you are forced to play, not to chance your life to gain three at a game where there is an equal risk of loss and gain. But there is an eternity of life and happiness. And this being so, were there an infinity of chances, of which one only would be for you, you would still be right in wagering one to win two, and you would act stupidly, being obliged to play, by refusing to stake one life against three out at a game in which out of an infinity of chances there is one for you, if there were an infinity of an infinitely happy life to gain. But there is here an infinity of an infinitely happy life to gain, a chance of gain against a finite number of chances of loss, and what you stake is finite. It is all divided; wherever the infinite is and there is not an infinity of chances of loss against that of gain, there is no time to hesitate, you must give all. And thus, when one is forced to play, he must renounce reason to preserve his life, rather than risk it for infinite gain, as likely to happen as the loss of nothingness….

Now, what harm will befall you in taking this side? You will be faithful, honest, humble, grateful, generous, a sincere friend, truthful. Certainly you will not have those poisonous pleasures, glory and luxury; but will you not have others? I will tell you that you will thereby gain in this life, and that, at each step you take on this road, you will see so great certainty of gain, so much nothingness in what you risk, that you will at last recognize that you have wagered for something certain and infinite, for which you have given nothing.

Posted on by Marc O. DeGirolami

Supreme Court Unanimously Strikes Down Arizona Municipality’s Sign Code as Violating Speech Clause

A busy First Amendment day at the Court today. In Reed v. Town of Gilbert, the Court unanimously strikes down the town’s byzantine sign ordinance as violating the Speech Clause, and in particular as being content-based regulations that do not survive strict scrutiny. Justice Thomas writes the opinion for the Court in which everybody joins except Justice Breyer (who concurs in the judgment only) and Justice Kagan (who concurs in the judgment only and is joined by Justices Ginsburg and Breyer).

The majority holds that the town’s sign code was content-based on its face, permitting larger signs for political and ideological messages than for other sorts of messages, such as the plaintiff’s desired sign concerning its church services. The Court had some rather pointed words for the Ninth Circuit, whose justifications for the restriction the Court rejected emphatically. I previously discussed the case here.

Perhaps of interest only to Supreme Court watchers, but note that this is yet another law and religion case decided 9-0 by the Roberts Court. True, there were a few concurrences in the judgment only, but it’s still an interesting feature of the case. As I discuss at greater length in this paper, the Roberts Court’s uniform pattern is 9-0 or 5-4 in this context. I speculate about why in the article.

Posted on by Marc O. DeGirolami

Specialty License Plate Case Decided by the Supreme Court on Government Speech Grounds

The Supreme Court today decided Walker v. Sons of Confederate Victims, which dealt with a state’s capacity to deny a specialty license plate to a group that wanted to feature a Confederate flag and the words “Sons of Confederate Veterans.” In an opinion by Justice Breyer (and joined by Justice Thomas), the Court holds 5-4 that speech on license plates is “government speech,” and therefore that the First Amendment does not stop the state of Texas from choosing what sort of message it will endorse. It would be one thing, said the Court, if the state were demanding that individuals “convey the government’s speech”–in essence acting as the government’s mouthpiece. But “as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.” The Court relied extensively on Pleasant Grove City v. Summum, another government speech case concerning a municipality’s rejection of a religious organization’s proposed monument in a public park that contained a Ten Commandments monument as well as several others. In Summum, the Court held that the municipality had not made the park available for private speech; all of the displays were government speech. The majority opinion here held that such was the case with the speciality license plates as well (oddly enough, since Texas had accepted applications from other organizations for specialty plates). Justice Alito dissented on the ground that Texas in fact does authorize specialty plates with distinctive messages that are obviously not government-endorsed speech (do see the Appendix beginning at page 18 of his opinion).

Posted on by Mark Movsesian · 1 Comment

Difficult Questions on Unused Embryos

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Photo from the Telegraph

A really fascinating article in the New York Times this morning about the perhaps one million embryos currently in storage in medical facilities across the United States. Most of these embryos have been created through IVF treatments, on which increasing numbers of Americans rely. IVF allows many couples to bring new life into the world and experience the great gift of children. Given the current state of the technology, though, parents who use IVF must typically create several extra embryos in order to increase the odds of conception. This means that many unused embryos remain. The Times  reports that perhaps a million such embryos now exist. What will become of them?

Of course, for many Americans, this question raises important religious issues. The Catholic Church teaches that IVF is immoral in principle, even for married couples, because it violates human dignity and degrades the marital act–though of course children created through IVF are to honored and cherished, just like any others. Evangelical Christians, however, in principle accept the practice for married couples, as do Orthodox Christians. The fate of any unused embryos raises very difficult questions, however. To destroy them seems tantamount to abortion, which both Evangelical and Orthodox Christianity condemn. And all Christians, I think, would have moral concerns about the commodification of embryos that seems the logical outcome of our market society. The Times reports that one California company is already in the business of creating embryos from third parties for would-be parents to purchase, for $12,500, plus a money-back guarantee.

But back to married couples. What should a couple with religious scruples do about extra embryos created by IVF? Some Evangelicals have come up with a good solution. They donate the embryos to other infertile couples. It’s analogous to adoption:

For example, the National Embryo Donation Center in Tennessee, which is endorsed by the Christian Medical Association, places embryos only with heterosexual couples married at least three years — and only after a home study exploring their readiness to be parents, as is required for families adopting a living child.

“We think the embryos deserve the same level of protections as children who are being adopted,” said Stephanie Wood-Moyers, marketing director of the center, where the Watts embryos were stored.

Where does the civil law stand in all this? Unlike many countries, the US does not regulate assisted reproduction technologies, including IVF. And so, as with respect to so many aspects of American life, it becomes a matter of contract law. In my first-year contracts class, in fact, our casebook has two relatively recent cases, one from Massachusetts and one from New York, on the enforceability of parties’ agreements with respect to the disposal of unwanted embryos after IVF. In the Massachusetts case, the court declined to enforce the agreement, in large part because the agreement was ambiguous.

The New York court, by contrast, ruled in favor of enforcement. “Explicit agreements avoid costly litigation in business transactions,” Chief Judge Kaye wrote. She continued:

They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable. Advance directives … both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instances a quintessentially personal, private decision. Written agreements also provide the certainty needed for effective operation of IVF programs.

Now, you might wonder whether questions as complicated and wrenching for people as these should be handled by contract law, as if they were equivalent to particularly difficult business transactions. (“How do we divide up the inventory if the partnership dissolves?”). Surely there is a more humane way to address these issues. But that seems to be the way our culture is heading. If there’s one thing we still believe in, apparently, it’s liberty of contract–at least when it comes to bearing children.

Posted on by Mark Movsesian

Putin and the Pope

Getty_112513_PutinPope
How have you been?

From Crux’s John Allen, here is an interesting and provocative article on today’s scheduled meeting between Russian president Vladimir Putin and Pope Francis. Surprisingly, Allen writes, on some issues, the two men have “forged an improbably strong partnership.”

One of those issues is the persecution of Mideast Christians. While Western nations have temporized, refusing even to acknowledge the sectarian dimension of the crisis–ISIS’s actions have nothing to do with religion, apparently–Putin has made himself the champion of the region’s Christians:

“As regards the Middle East and its Christians, their situation is dire,” Putin said in April. “The international community is not doing enough … this is the motherland of Christians. Christians have lived there from time immemorial, for thousands of years.”

In some corners of the Middle East, such as the Syrian region of Qualamun, Russia actually has floated the idea of granting citizenship to pockets of Orthodox Christians, effectively offering them a security blanket.

Now, talk is cheap. And Putin’s motivations are not wholly humanitarian. By offering itself as the protector of Mideast Christians, most of whom are Orthodox, Russia can exert influence in the region. (France has traditionally put itself forward in the same role, although France tends to focus on Catholics). Speaking out for Christian minorities also increases Putin’s credibility as the representative of traditional Christianity, which no doubt wins him admirers in the developing world, where Christianity is expanding, often in conflict with a rising Islam. And, of course, championing the cause of Orthodox Christians increases his political appeal in Russia itself.

Still, whatever his motives, Putin has focused on the suffering of Christians as Christians, and that is something many leaders in the West are apparently reluctant to do. It is also a stance, Allen writes, that appeals to Pope Francis:

Since Francis’ election in March 2013, meanwhile, no social or political issue has engaged the pontiff like the plight of persecuted Christians, especially in the Middle East.

In March, he demanded that the world stop trying to “hide” the reality of anti-Christian violence, and he’s also argued that the shared suffering of Orthodox, Catholics, and Protestants alike is the basis for a contemporary “ecumenism of blood.”

Allen notes that the conflict in Ukraine will pose obstacles for any real partnership between Russia and the Vatican. Ukrainian Catholics believe that Pope Francis has taken too soft a line in that particular crisis. Francis has described the conflict as an unfortunate disagreement between Christians, while Ukrainian Catholics tend to see it as the result of Russian provocation, which they wish Francis would denounce. In particular, Ukrainian Catholics resent what they see as bullying and duplicity on the part of the Russian Orthodox Church, particularly the Moscow Patriarchate.

As I say, an interesting and provocative piece.

Posted on by Marc O. DeGirolami

Religious Belief and Executive Power: A Thought on Zivotofsky v. Kerry

One prominent theme in Barack Obama’s presidency is that of the escalation of conflict between traditional religious belief and executive power–in particular the executive/administrative powers brought to bear against religious believers and institutions in a variety of contexts. One can agree with this description, of course, while seeing that escalation of conflict as either a favorable or regrettable development. A recent essay by Adam White in The Weekly Standard takes the latter view; more than a few other commenters and scholars take the former.

Today’s Supreme Court decision in Zivotofsky v. Kerry does not obviously concern this issue. It instead involved a separation of powers question: whether a congressional statute permitting a U.S. citizen born in Jerusalem to request a designation of his place of birth as “Israel” on his passport unconstitutionally interfered with the Executive’s power to recognize sovereign nations (while Israel has been recognized, the national status of Jerusalem remains unresolved). Ultimately the Court held, inter alia, that the Executive’s power to receive ambassadors gives him the exclusive power of recognition, and that this statute interfered with that power. So in a tussle between Congress and the President, the President won.

And yet this was not simply an inter-branch heavyweight fight. Consider the question of Jerusalem. Jerusalem’s status is not only a matter of geopolitical disagreement, but of deep geo-religious contention. That contention stretches back through the past millennia to innumerable wars and religious controversies. The function of this particular statute is plain: to allow those U.S. citizens born in Jerusalem and who, for religious reasons (that is, reasons that may implicate religious convictions), believe that Jerusalem is properly described as an Israeli city, the right to note that association on their passports. As Justice Scalia notes in his dissent: Zivotofsky’s parents believed “as a matter of conscience” that it was important to note “their son’s birthplace as part of Israel” and that his “Israeli nativity ‘not be erased’ from his identity documents.” In defending Congress’s power to enact the statute (under the Naturalization Clause and the Necessary and Proper Clause), Scalia continued: “[Congress may conclude] that regardless of international politics, a passport or birth report should respect its bearer’s conscientious belief that Jerusalem belongs to Israel.”

Whoever has the better of the argument as a matter of constitutional interpretation, one can see in this case another example of the conflict between Executive power and religious conscience: the Obama Administration refused to permit an individual citizen with a religious belief in the importance of listing Israel as the place of birth of his son to do so. It took an aggressive view of Executive power (both as to whether sovereign recognition powers are exclusive to the Executive and as to whether this particular designation of an individual citizen counts as sovereign recognition) in a context in which it was, once again, opposed to traditional religious conscientious belief. A notation by a private U.S. citizen on his passport, motivated by religious belief in the importance of the designation, is thus transformed into a usurpation of Executive power.

Justice Scalia cited Bowen v. Roy (1986), a religious liberty case where parents objected to government use of the Social Security number of their daughter, “Little Bird of Snow,” and to having to supply that number when they applied for benefits. According to the parents’ Native American beliefs, a person needs control over his life for spiritual reasons and use of the number would have “rob[bed] the spirit” of their daughter.” Ultimately the Court had no occasion to balance the government’s interest against a possible religious burden, because it held that the government can use the number for its own internal purposes without impairing anyone’s religious conscience. But a majority of five justices held that the parents should not be required to supply the number, because the government’s asserted interest in combating welfare fraud would not be much compromised if those with religious objections did not have to supply Social Security numbers.

Obviously Justice Scalia is not suggesting that the Zivotofsky parents have a religious freedom claim here. So why the citation to Bowen?

Perhaps for this reason. The argument is not about constitutional compulsion, but about religious (and other sorts of) accommodation. The government is not forced by the Constitution to make an exception for the Zivotofskys. But Congress did–here, and in other contexts (allowing those who wish to specify “Belfast,” rather than “United Kingdom,” to do so on their passports, for example). It grants these exceptions not because it is thereby recognizing Israel’s sovereignty over Jerusalem (as it is not thereby de-recognizing the United Kingdom’s sovereignty over Belfast), and not because the Constitution commands it, but because it understands that for some American citizens, religious and identity-based convictions about Jerusalem’s status are deeply important, and because people care about what the federal government says about them on official documents. The Obama Administration’s position, instead, was that this sort of conscience-based designation trenches on Executive authority. And in staking out that position (and now in vindicating it before the Supreme Court, in a ruling about which I have no comment) the Administration repeated the pattern of conflict with traditional religious belief that it has established in several other controversies and that have characterized its years in power.

Posted on by Marc O. DeGirolami · 1 Comment

Summer Fridays With Pascal: On Legitimacy

This is the second in our estival feature here at CLR Forum. For its origin and inspiration, see this post.

One of the pervading themes of Pascal’s Pensées is the conflict between reason

Pascal (Reasoning or Imagining?)
Pascal (Reasoning or Imagining?)

and emotion, sentiment, and the imagination. Consistent with the Calvinist orientation of Jansenism (and in contradistinction to older views of the consilience of reason and faith), Pascal sees them as quite distinct. And he believes that, man being fallen, emotion and the imagination are the primary movers in achieving whatever satisfactions and happinesses man can reach in this world.

But Pascal goes further, observing that not only individual satisfaction, but also worldly reputation, is obtained not through reason but through the exercise and effect of the imaginative faculties. And the fruits of imagination in this respect very much affect and pertain to law and the perception of its authority—that is, its legitimacy.

As we are in the month of June, the yearly apotheosis of public fascination with the judiciary, here is an extended passage that treats in part of judicial legitimacy:

Would you not say that this magistrate, whose venerable age commands the respect of a whole people, is governed by pure and lofty reason, and that he judges causes according to their true nature without considering those mere trifles that affect the imagination of the weak? See him go to sermon, full of devout zeal, strengthening his reason with the ardour of his love. He is ready to listen with exemplary respect. Let the preacher appear, and let nature have given him a hoarse voice or a comical cast of countenance, or let his barber have given him a bad shave, or let by chance his dress be more dirtied than usual, then however great the truths he announces, I wager our senator loses his gravity.

If the greatest philosopher in the world find himself on a plank wider than actually necessary, but hanging over a precipice, his imagination will prevail, though his reason convince him of his safety….

Love or hate alters the aspect of justice. How much greater confidence has an advocate, retained with a large fee, in the justice of his cause! How much better does his bold manner make his case appear to the judges, deceived as they are by appearances! How ludicrous is reason, blown with a breath in every direction!….

Our magistrates have known well this mystery. Their red robes, the ermine in which they wrap themselves like furry cats, the courts in which they administer justice, the fleurs-de-lis, and all such august apparel were necessary; if the physicians had not their cassocks and their mules, if the doctors had not their square caps and their robes four times too wide, they would never have duped the world, which cannot resist so original an appearance. If magistrates had true justice, and if physicians had the true art of healing, they would have no occasion for square caps; the majesty of these sciences would of itself be venerable enough. But having only imaginary knowledge, they must employ those silly tools that strike the imagination with which they have to deal; and thereby in fact they inspire respect….

Pensées, #82.

Posted on by Marc O. DeGirolami

Supreme Court Rules Against Abercrombie & Fitch in Headscarf Case

The Supreme Court yesterday decided a case we’ve discussed here at CLR Forum (including in this podcast), EEOC v. Abercrombie & Fitch, concerning the department store’s decision not to hire a job applicant because her head scarf conflicted with the store’s “look policy,” which prohibited all “caps.”  The rejected applicant sued pursuant to a federal nondiscrimination provision that prohibits “disparate treatment” on the basis of religion, among other categories. There was a dispute in the case about what the employer knew about the applicant’s reasons for wearing the headscarf and about whether the prospective employee must so inform the employer before bringing a claim.

The decision is short and not especially interesting. In an opinion by Justice Scalia, the Court held (8-1, with Justice Alito concurring only in the judgment and Justice Thomas concurring in part and dissenting in part) that in order to prevail on a disparate treatment claim under the “disparate treatment” provision of Title VII, a plaintiff need not show that a defendant had “actual knowledge” of the plaintiff’s need for a religious accommodation. The plaintiff need only show that the need for an accommodation was a “motivating factor” in the decision. Much of the rest of the majority’s opinion was consumed with interpreting the meaning of “because of” in the statutory phrase, “fail or refuse to hire…any individual…because of such individual’s…religion….” According to the Court, the provision prohibits certain motives, irrespective of the actor’s state of knowledge. The decision accords with what many scholars believe is the primary function of antidiscrimination statutes–to smoke out and punish illicit motivations, irrespective of what is known or not known as a factual matter.

One mildly interesting section of the opinion responds to Abercrombie’s claim that a religion-neutral policy like the Look Policy cannot “intentionally discriminate” against religion. As in the case of the Religious Freedom Restoration Act, Title VII, said the Court, requires more than a neutral policy:

But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no- headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the sub- sequent “fail[ure] . . . to hire” was due to an otherwise- neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

Justice Alito concurred only in the result, arguing that the statute does impose a knowledge requirement but that there was sufficient evidence in the record to defeat summary judgment on the question whether Abercrombie knew that the applicant needed a religious accommodation. Justice Thomas dissented on the ground that application of a religion-neutral policy cannot constitute “intentional discrimination.”

Posted on by Mark Movsesian

Walter Russell Mead on Mideast Christians

In the Wall Street Journal, the Hudson Institute’s Walter Russell Mead had a bracing piece on the current crisis facing Mideast Christians. The piece is a version of the remarks he gave at the Hudson Institute conference earlier this month. His advice: Christians must “‘fort up’ or flee.” Here’s his conclusion:

Traditional strategies of accommodation will no longer serve. Christians face stark choices. They can “fort up,” creating defensible and well-armed enclaves that their enemies cannot conquer. They can flee, as millions have already done. Or they can wait to be massacred.

In the modern Middle East, the minorities that have survived, and in some cases thrived, have acquired a military capacity. The Jews, the Kurds, the Armenians, the Maronites and the Druse have not all created states, but they have all built redoubts. The Maronites (Lebanese Christians in communion with the Roman Catholic Church) and the Druse (a monotheistic religion distinct from both Christianity and Islam) both entrenched themselves in the mountains of Lebanon and built militias that have allowed them to survive recurring bouts of civil war.

Other communities have chosen the path of flight. Almost all the Jews of the Arab world now live in Israel. More Armenians and Circassians live outside their ancestral homelands than in them. Many Assyrian and Chaldean Christians already live in the West, and Copts and other Christians have been escaping in a steady flow.

The conscience of the West has been slow to wake to the peril of the dwindling minorities of the Middle East (including non-Christians such as the Yazidis, as well as the persecuted Baha’i of Iran and the Ahmadis of Pakistan), but Islamic State is changing that. In the wake of its atrocities, Pope Francis and, in the U.S., church leaders like New York’s Cardinal Timothy Dolan are speaking up.

This is a very good thing, but advocates for the Christians and other endangered Middle East minorities must think hard about the available options. We must choose from among three courses of action.

We can help the region’s minorities “fort up,” as the Israelis, Kurds and Maronites have done. We can help them to escape and work with friends and allies around the world to help them find new homes and start new lives. Or we can do what history suggests, alas, as our most probable course: We can wring our hands and weep piously as the ancient Christian communities in Syria and Iraq are murdered, raped and starved into oblivion, one by one.

Read the whole thing here.

Posted on by Mark Movsesian

Movsesian Essay on Genocide at Liberty Law Site

For those who are interested, the Library of Law and Liberty has published my essay, We Remember the Genocide–And We Must Avert Another. In the essay, I draw parallels to the Armenian Genocide of 1915 and the persecution of Mideast Christians today:

Religiously motivated violence against Christians is not a new phenomenon. The attitudes classical Islam fosters—that Christians are vaguely alien dhmmis who can be tolerated as long as they remain subservient, but who forfeit protection if they assert equality or cooperate with outsiders—played an important role in 1915 and do so today. Again, most Muslims today do not endorse these attitudes, and other factors are involved, too. But to dismiss religion as a major factor in the current violence is to close one’s eyes to reality.

To read the full essay, please click here.