Comments on Indiana

Setting politics aside to start with: I'm unsurprisingly a strong supporter of the original Religious Freedom Restoration Act and its state-level counterparts that sought to protect religious believers against state interference of the sort that was legalized by Smith v Oregon. I'm much more uneasy about RFRA defenses in civil lawsuits between two private parties. There is a lot to be said for having a general, impersonal private law, such that I don't have to know the identity of the other party in order to know the law that will govern our transaction. I've quoted this before in a related context; recall Voltaire's classic statement of the doux commerce thesis:

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There thee Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.

That's a major, valuable civil accomplishment, and not to be thrown away lightly. If I can't transact with people on the same terms because each of us is potentially carrying around a religiously-specific contract or tort law, that's a real loss. I don't say that a unified private law is required by justice or abstract principle; I'm too much of a pluralist and a multiculturalist for that. But I think we have reason to be very nervous about abandoning it, and reason to treat lightly and deliberately. I do not get the feeling that the trend toward super-RFRAs that extend to private transactions has been adopted with due care. As to private-sector discrimination, I'm of the view that private businesses should be free to refuse customers, subject to two categories of exceptions: (a) if the firms are common carriers or (in the common law sense) public accommodations rather than ordinary private retailers and (b) in the United States, due to the constitutional and historical distinctiveness of Jim Crow and its melding of public and private discrimination, discrimination on the basis of race. I think the trend to treat bans on private-sector discrimination outside of public accommodations and common carriers as the rule, rather than a unique exception demanded by the unique shape of Jim Crow, has been a serious mistake. But just because I think that the florist and the wedding-cake baker ought to be free to refuse customers in general doesn't mean that I think "antidiscrimination statute governing sexual orientation plus highly particular religious exemption" is a good second-best. Sometimes a legal kludge can make for a tolerable compromise. Sometimes when one area of law is broken, bending another can get you roughly where you should be. I'm not at all convinced that that's the case here. Writing an exemption to antidiscrimination law specifically for Christians who don't approve of homosexuality is ugly; and the generalized version we see in RFRAs like Indiana's does damage (the scale of which we can't yet guess) to the generality of the private law. Now unbracketing the politics: A pox on both your houses. There's a tremendous amount of deliberate and inflammatory misinformation flying around-- on one side, as if the IRFRA were nothing but a license to discriminate on the basis of sexual orientation, and on the other as if there were no relevant differences between IRFRA and other RFRAs. (Most state RFRas don't apply to horizontal suits between private parties; there's a circuit split on whether to interpret the federal RFRA as so applying, but the statute doesn't say that it does.) George Stephanopolous yesterday went after Mike Pence with what he clearly thought was the very clever demand to get a yes or no answer to the question of whether it's now legal to discriminate against gays and lesbians in Indiana, when a) It already was; Indiana doesn't have a statewide ban on private sector discrimination on the basis of sexual orientation (there are city- and county-level laws), and b) the right answer is not to know the answer, as all RFRAs prescribe a standard for judicial review rather than predetermining answers. It's up to a competent court to adjudicate whether there is a compelling state interest in preventing discrimination against a particular gay person by a particular conservative religious believer in a particular transaction. On the other hand, Pence and the bill's legislative supporters are obviously being disingenuous as hell about the motivation for passing a RFRA with this particular shape at this particular time. It is no secret that, politically, in Indiana, right now, this RFRA is centrally about same-sex marriage. People who have, in the last two years, unsuccessfully defended a ban on same-sex marriage in federal court and unsuccessfully tried to constitutionalize that ban make unconvincing defenders of liberty; they're just switching legal strategies. By the same token, and as I've said before, the newfound desire for opponents of same-sex marriage to defend pluralism and compromise rings very hollow.

Both of those requirements — compelling government interest, least burdensome means — are open to a considerable degree of interpretation, which is of course by design: That is what allows a modus vivendi to emerge.[...] Gay-rights activism is, just at the moment, very much oriented toward preventing the emergence of any social compromise on the matter of homosexual marriage, which is why tradition-minded florists and bakers, generally conservative Christians, are being targeted for prosecution as enemies of civil rights.

The anti-same-sex-marriage movement during its ascendancy in the 1990s and 2000s was viciously and hatefully maximalist. Imagine the different history of America if conservatives in the late 1990s had energetically supported civil unions provided that they not use the word "marriage," instead of pursuing the most aggressive and restrictionist DOMAs they could get away with in each context, such that where conservative majorities were strongest even ordinary contractual rights that might seem too much like marriage were prohibited, instead of mobilizing boycotts of firms that offered same-sex couples employment benefits! As it is, their defense of private sector liberty and the pluralism it makes possible is many days late and many dollars short. It kicked in only when, starting in the mid-2000s, the political tide turned. That shouldn't change our view of the right outcome; some particular cake baker shouldn't lose his religious liberty because the movement that's defending him now makes hypocritical arguments. But it does mean that the violin I hear playing when conservatives complain about the supposedly totalizing and compromise-rejecting agenda of same-sex-marriage supporters is very very small indeed. Update: Michael Tanner offers some thoughts in a very similar spirit.

What I've Been Reading: Helena Rosenblatt, Liberal Values: Benjamin Constant and the Politics of Religion

Shorter post than usual on this one, as I read it to help with what I'm writing now, and I should just keep writing. It's a marvelous book in at least three ways.

One, it's astonishingly efficient, moving the reader rapidly but thoroughly across multiple parties and intellectual movements and some four decades. I've read a lot about liberal politics in Restoration France in general, and Constant in particular, and was still learning a tremendous amount in each chapter. It's a book in the "Ideas in Context" series from CUP, and it fits that label as well as any book bearing it, indeed better than most.

Two, it's really very well-written. It's a scholars' history through and through, addressing interpretive questions and suitably thickly footnoted, but it reads as easily as good popular history does.

Three, the book wears its sympathy for Constant on its sleeve yet presents his various antagonists' views with almost as much care as it presents his.

The book covers Constant's turn to a kind of Protestantism, and shows of what kind that was-- Kantian, Germanic, and Romantic in inspiration, close to being Deist or "natural religion" in content but interestingly (to my eye bizarrely) progressive in its ecclesiology. Constant believed that religion changed with the times and was no less true for that; God allowed us to gain knowledge over time, and offers us new times, new revelations, to match our intellectual maturity. Religion is perfectible or at least progressive, becoming ever-more attuned to authentic religious sentiments and moral goodness, ever-less superstitious and stultifying. And so Protestantism was progress, and it also facilitated progress by opening free inquiry into religious matters and diminishing the importance of external church forms. But progress continued.

With that religious worldview explained, the book's core purpose is to treat it as part of Constant's political thought, and in turn to show the political importance of his religious thought and writings, through a marvelous exposition of post-Revolutionary religious politics in France.

Two thoughts prompted by the book, but less about this book than about the Constant literature in general. One, we're now decades into the Constant "revival." His reputation as both a liberal political actor and a great political theorist now seem to me rescued. Of the people who know who Benjamin Constant is, most are basically well-disposed toward him (at least in the English-speaking world; it might be different in France). At what point does "rehabilitate Constant's reputation" cease to be an imperative in every new book about the man and his thought? It was less of a distraction in this book than in many, because Rosenblatt had something new to say-- viz. that the venom with which Constant was attacked and his name denigrated for a generation after his death was directly connected to usually-overlooked religious disputes.

Two, the contemporary admiration for Constant often goes with an embarrassment over his economic views, which were openly laissez-faire. Rosenblatt, unlike some Constant authors, doesn't hide this or deny it. She argues, rightly, that Constant was no egoist or materialist, and that he thought commerce and wealth were less important than the development of the individual mind and soul (though she misses the importance of some of his change in thought, from static property to dynamic commerce, that's suggested by passages she refers to). But she still talks about it as though that means that he doesn't really count as a laissez-faire liberal, that he's not like the rest of them. That Constant had a gambling problem, was a womanizer, and probably visited prostitutes-- these are presented matter-of-factly. That he believed in free trade and an open market-- this must be apoloigized for, minimized, and mitigated, rather than being understood or explored. That's OK; this is a book about Constant and religion, not about Constant and commerce (though, again, there are interesting connections between the two that get left unanalyzed). But after you read enough about Constant, the pattern becomes a little bit tiresome.

The book is well-blurbed at Amazon (in what I think is an excerpt from a Perpsectives on Politics review, despite what Amazon says) by Art Goldhammer, whose excellent blog on French politics I don't link to as often as I should.

I believe that Yale political theorist Bryan Garsten is working on a book on the same subject, which I now await even more eagerly than I did before.

A point that should be obvious

Opposing someone else's expression or activity on the grounds that it's "provocative"-- that it will provoke various observers and third parties to some negative reaction-- is usually a dishonest way of dodging agency. It means: "I've made the decision that my dislike for your expression is more important than your freedom, and I intend to aggress against you to shut you up, but I want to make it seem like you're the one who's made a decision to be aggressive." It's a decision posing as a passive reaction. It's then, perversely, often followed by the idea that the expression's primary purpose was to provoke, and so denying that the first person has any non-aggressive interest at all in the expression.

Some of this was worked out and widely endorsed during the controversy over the Danish cartoons.

But it applies just as forcefully to the way that defenders of laicite talk about the various forms of Islamic women's covering (from headscarves to the burka/ niqab).

And, boy oh boy, does it apply to the despicable demagoguery around building a mosque in lower Manhattan.

Sarah Palin, the 2008 Republican vice-presidential nominee, has urged “peace-seeking Muslims” to reject the center, branding it an “unnecessary provocation.” A Republican political action committee has produced a television commercial assailing the proposal. And former House Speaker Newt Gingrich has decried it in speeches.[...]

He added: “The average American just thinks this is a political statement. It’s not about religion, and is clearly an aggressive act that is offensive.”

Update: Isaac Chotiner had the same thought.

Ah, France

Fast-food chain Quick triggers an uproar and is accused of acting "contrary to the principles and spirit of the republic" when it makes the business decision to serve only halal beef at some restaurants. (Mind you, it's not as though this means only serving Muslim customers-- Christians and non-believers can eat halal beef without getting cooties.)

Compare, of course, the Quebec sugar shack case.

Contra Fuller

See Eugene Volokh on a proposed Arizona abolition of freedom of contract and choice of law.

News that is both terrible and stupid

Swiss voters appear to approve a constitutional amendment banning the construction of minarets.

Obviously false dichotomies

One sees this kind of thing from time to time, and it baffles me.

“The issue of the burqa is not a religious issue; it is a question of freedom and of women’s dignity,” Mr. Sarkozy said. “The burqa is not a religious sign; it is a sign of the subjugation, of the submission of women.”

Why would one possibly think that either of those sentences contains two mutually-exclusive categories? What generates the idea that something cannot be both a religious symbol and a symbol of women's subjugation? Is it polyanna-ism about religion?

I'm not commenting here on the merits of Sarkozy's insistence that "the burqa is not welcome in France" (though I'll probably do so at some point). But the attempt here, I guess, to deny that there are any costs or trade-offs in banning it (if it's not a "religious issue," then there's no constitutional value to balance against the constitutional value of sex equality-- that kind of thing) seems to me pointlessly dishonest.

Update

There's sophistry aplenty in the following section, expanding on why a prohbition on the burka would be costless in terms of liberty:

Où en sommes-nous avec la liberté ? Qu'en avons-nous fait ?

La liberté, ce n'est pas le droit pour chacun de faire ce qu'il veut. Être libre, ce n'est pas vivre sans contrainte et sans règle. Quand il n'y a pas de règles, quand tous les coups sont permis, ce n'est pas la liberté qui triomphe, c'est la loi de la jungle, la loi du plus fort ou celle du plus malin.

C'est le débat que nous avons sur l'école : rendre service à nos enfants, c'est leur enseigner qu'il n'y a pas de liberté sans règle.

C'est le débat que nous avons sur l'économie, sur la finance, sur le capitalisme. Nous voyons bien que le capitalisme devient fou quand il n'y a plus de règles.

C'est le débat aussi que nous avons sur le droit d'auteur. Car enfin, comment pourrait-il y avoir dans notre société de zones de non-droit ? Comment peut-on réclamer en même temps que l'économie soit régulée et qu'Internet ne le soit pas ? Comment peut-on accepter que les règles qui s'imposent à toute la société ne s'imposent pas sur Internet ? En défendant le droit d'auteur, je ne défends pas seulement la création artistique, je défends aussi l'idée que je me fais d'une société de liberté, où la liberté de chacun est fondée sur le respect du droit des autres. C'est aussi l'avenir de notre culture que je défends. C'est l'avenir de la création. Voilà pourquoi j'irai jusqu'au bout. (Applaudissements.)

Le débat sur la liberté, c'est aussi le débat sur la sécurité et sur les prisons. Quelle est la liberté de celui qui a peur de sortir de chez lui ? Quelle est la liberté pour les victimes si leurs agresseurs ne sont pas punis ? Comment peut-on parler de justice quand 82 000 peines ne sont pas exécutées parce qu'il n'y a pas assez de places dans les prisons ?

So: imprisoning women who go out of the house fully covered prevents the law of the jungle; prisons are liberty; restrictions on capitalism are liberty; copyright restrictions are liberty. No rules can possibly restrict liberty, because liberty is not the absence of rules.

I suppose I should view it as ideologically useful to have the French economic model linked so closely to the French model of laicite, both in opposition to Anglo-Saxon liberalism. But it just makes me cranky.

Good for Obama

From the Cairo address:

Likewise, it is important for Western countries to avoid impeding Muslim citizens from practicing religion as they see fit – for instance, by dictating what clothes a Muslim woman should wear. We cannot disguise hostility towards any religion behind the pretence of liberalism.
[...]

The sixth issue that I want to address is women's rights.

I know there is debate about this issue. I reject the view of some in the West that a woman who chooses to cover her hair is somehow less equal, but I do believe that a woman who is denied an education is denied equality. And it is no coincidence that countries where women are well-educated are far more likely to be prosperous.

It's an extraordinary speech overall, hitting lots of very important themes and ideas. I started off a little annoyed, because the only terrorist attack mentioned is 9/11 and the reaction to it is made to seem like a purely American one. I understand that it's vital to avoid describing a civilizational war, and that this generates an impulse to compartmentalize 9/11. Making 9/11 a localized security threat against the United States, and the response to it a localized war in Afghanistan, is a way of forestalling Bush-era maximalism.

But it also makes the security account seem parochial: the U.S. responded to Al Qaeda's attacks on New York and Washington, and that's the extent of the American interest. I don't want to see the deaths in Madrid, London, Bali, Casablanca, Jakarta, Riyadh, and Istanbul disappear from our historical memory of 9/11 and its aftermath. And invoking them doesn't have to mean describing a global civilizational struggle-- indeed it allows one to emphasize that much of Al Qaeda's violence is committed against targets within Muslim countries. Through Obama's address, 9/11 is mentioned several times, and other attacks are only alluded to.

But that's my only substantial objection to a very important, and very effective, speech. And I was of course especially glad to see the passages with which I began, and don't at all mind the implied swipe at France and Turkey. The American doctrine of religious freedom does have a distinct position from the Jacobin doctrine of laicite, and it's worthwhile to stress the implication for Muslim liberty in America.

Joan Scott, "Secularism and Women's Equality"

Today at McGill: Joan Scott, "Secularism and Women's Equality," Leacock 232, 4 pm.

Joan Scott will look at the current popular assumption that there is a relationship between secularism and gender equality. According to Prof. Scott this secular versus religion argument has been revived as a way of talking about the unacceptability of Muslims, especially in Western European states where they constitute large immigrant populations. Prof. Scott will argue that historically there is no relationship between processes of secularization (separation of church and state) and rights/equality for women; indeed, that the public/private separation (politics/religion) parallels the political/domestic split that consigns women to childbearing and child rearing; the problem of how to address sexual difference plagues secularists still. If there has been a growing flexibility in the realm of sex and sexuality in some areas of the West, it's questionable whether it is a product of secularism.

I believe that this is an inaugural event of the new McGill Institute for Gender, Sexuality, and Feminist Studies, which succeeds the McGill Centre for Research and Teaching on Women.

Promoting equality of the sexes...

by excluding women from citizenship. Notice that her husband, who presumably shares her religious views, is already a citizen.