Balkinization: May 2014

Balkinization
an unanticipated consequence of
Jack M. Balkin

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

The health care case, again: Koppelman on Dorf on Koppelman

Ellsberg and Snowden

James Madison: Architect of the Constitution?

The Anti-Oligarchy Constitution

How should we respond to "profound gloom"

We The People, Volume 3 Symposium

A Third Founding: Part two -- Fidelity or Betrayal?

Bottlenecks series at Brookings

A Third Founding: Part one -- The Twentieth Century Achievement

Dead People and the War Powers

Brown and the Civil Rights Revolution

Parents Involved and the Struggle for Historical Memory

Visiting the UK Supreme Court

Cold Respect, Gay Rights, and Religious Toleration

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Saturday, May 31, 2014

The health care case, again: Koppelman on Dorf on Koppelman

Andrew Koppelman

Michael Dorf’s generous review in the Texas Law Review of my book, The Tough Luck Constitution and the Assault on Health Care Reform, agrees with me that what I call “Tough Luck Libertarianism” - the idea that if you get sick and can’t pay for it, the state has no right to help you - played a large role in the Court’s decision in the health care case. Dorf however thinks I haven’t given enough weight to two other factors: federalism and “nonpartisan framing” – the presentation of partisan arguments in nonpartisan legal terms. When these are taken into account, the constitutional challenge no longer seems to him as frivolous as he once thought (and I still think) it to be.

The law review has now published my response to the article, here. In it, I agree with Dorf that it’s important to consider, as sympathetically as you can, arguments with which you don’t agree. But there are dangers. Dorf’s generous spirit has led him to expand, really to explode, the bounds of the frivolous.

Posted 6:02 PM by Andrew Koppelman [link]

Thursday, May 29, 2014

Ellsberg and Snowden

Stephen Griffin

I just posted a revision to an overview of the law of executive power I did for the forthcoming Oxford Handbook of the U.S. Constitution. I was honored to be asked to contribute on such an important topic. Given the limited space I had, I did more revisions than I normally do in the process of thinking through many issues I had not previously come to grips with. So I hope to do some posts “filling out” some parts of the argument that obviously need more attention than I could give them in the piece.

That said, the controversy over Michael Kinsley’s review of Glenn Greenwald’s book reminded me that I’ve been meaning for some time to note some obvious contrasts between the leakers Ellsberg and Snowden. These occurred to me because I researched the Vietnam War in the process of writing Long Wars and the Constitution. But these contrasts don’t seem widely known.

Is Snowden like Ellsberg? Not really. Daniel Ellsberg, widely admired for his analytical ability and knowledge of the Vietnam War, worked for years at the highest levels of government, advising principal cabinet officers like Robert McNamara. Although this is not emphasized in summaries of his career I have seen, he continued to advise government officials like Henry Kissinger from his post at the RAND Corporation in the months that followed Nixon’s election in 1968. After his opinion on the war changed, Ellsberg was thus in an excellent position to judge whether there were any harmful national security secrets in the DOD historical study he gave to the New York Times, known as the Pentagon Papers. Ellsberg had to assume he might be prosecuted and the lack of such secrets would constitute a defense.

When the government sued the NYT and WaPo for a prior restraint, they tried to make the case that critical secrets had been revealed (focusing on the NSA!). But there wasn’t a good case for this (although I understand David Rudenstine has argued to the contrary). The same obviously isn’t true for Snowden. I don’t know how to characterize his job, but Snowden was obviously light years from the kind of circles Ellsberg moved in and of course did not have Ellsberg’s access or a comprehensive knowledge of national security matters similar to Ellsberg’s.

The publication of the Pentagon Papers is usually put down as one of American journalism’s greatest triumphs. But I think we can now see it involved a good measure of luck as well. The information in the Papers was no longer significant to national security because it was old. But it was of outstanding political relevance, because of the big debate at the time over how we got involved in Vietnam. That’s why the Papers were a genuine scoop and why Nixon prosecuted. To his aides, Nixon compared Ellsberg to Alger Hiss, saying “’the papers themselves didn’t make any difference. They were old and outdated and unimportant (to national security); the key thing was that we got across the point that Hiss was a spy, a liar and a Communist. That was the issue. The question on this one [Ellsberg] is basically the same thing.’” (Kimball, Nixon’s Vietnam War, 256-57)

Posted 6:51 PM by Stephen Griffin [link] (77) comments

James Madison: Architect of the Constitution?

Guest Blogger

Ray Raphael

Here we go again. The publication of Lynne Cheney’s new blockbuster biography of James Madison revives one of our most cherished founding myths: Madison was the “father” (assertive textbook version) or “chief architect” (modification for a more sophisticated audience) of the Constitution. The New York Times headline writers selected “American Architect” to announce Gordon Wood’s review of Cheney’s book. This honorific appellation calls forth Madison’s claim to fame and his tug on our hearts.

Much is at stake here. If Madison were truly the chief architect of the Constitution, what he said and wrote (in 1787) bears heavily on the meaning of that document. Through the imprecise doctrines of original intent and original meaning, so pervasive in our political culture, Madison’s views become scripture. Then, if we casually omit the key words “in 1787,” what he did, said, or wrote at any time in his career wind up guiding Constitutional interpretation. Madison conceived the Constitution. Madison believed thusly, so that’s what the Constitution says. Our public policy, to follow the Constitution, must follow James Madison. By applying this sloppy syllogism, pundits, politicians, and Supreme Court justices can redirect the course of the nation. It all starts with that initial premise: James Madison, American Architect.

Was Madison the (chief) architect of the Constitution? An architect lays out a plan that that will be put into effect. Even metaphorically, this does not describe James Madison’s relation to the United States Constitution.

In fact, Madison did not always get his way at the Federal Convention of 1787. By one tabulation, he offered an opinion on 71 motions but lost out on 40 of these.[1]

This is not to denigrate Madison in any way; perhaps we would have been better off if other framers had followed his advice more often. But if Madison had had his way, the edifice created by the Convention would look very different than it does.

Posted 1:50 PM by Guest Blogger [link]

Monday, May 26, 2014

The Anti-Oligarchy Constitution

Joseph Fishkin

My colleague Willy Forbath and I are working on a book about equal opportunity and the Constitution. We are tracing several different forms of constitutional argument about equal opportunity that have been prominent at different points in American constitutional and political history. Some of these forms of argument have now largely disappeared from our constitutional discourse; we're interested in why that happened and whether they can be recovered.

The first installment of the book project is an article that focuses on a topic much in the news of late: the problem of oligarchy. The article is called “The Anti-Oligarchy Constitution” Here is the abstract:

America has awakened to the threat of oligarchy. While inequality has been growing for decades, the Great Recession has made clear its social and political consequences: a narrowing of economic opportunity, a shrinking middle class, and an increasingly entrenched wealthy elite. There remains broad agreement that it is important to avoid oligarchy and build a robust middle class. But we have lost sight of the idea that these are constitutional principles.

These principles are rooted in a tradition we have forgotten – one that this Article argues we ought to reclaim. Throughout the nineteenth and early twentieth centuries, generations of reformers responded to moments of mounting class inequality and crises in the nation’s opportunity structure with constitutional claims about equal opportunity. The gist of these arguments was that we cannot keep our constitutional democracy – our republican form of government – without constitutional restraints against oligarchy and a political economy that maintains a broad middle class, accessible to everyone. Extreme class inequality and oligarchic concentrations of power pose distinct constitutional problems, both in the economic sphere itself and because economic and political power are intertwined; a “moneyed aristocracy” or “economic royalists” may threaten the Constitution’s democratic foundations.

This Article introduces the characteristic forms of these arguments about constitutional political economy and begins to tell the story of anti-oligarchy as a constitutional principle. It offers a series of snapshots in time, beginning with the distinctive political economy of the Jacksonian Democrats and their vision of equal protection. We then move forward to Populist constitutionalism, the Progressives, and the New Deal. The Constitution meant different things to these movements in their respective moments, but all understood the Constitution as including some form of commitment to a political economy in which power and opportunity were dispersed among the people rather than concentrated in the hands of a few. We conclude with a brief discussion of how this form of constitutional argument was lost, and what might be at stake in recovering it.

Posted 8:47 AM by Joseph Fishkin [link]

Thursday, May 22, 2014

How should we respond to "profound gloom"

Sandy Levinson

I note the concluding paragraph from today's column by the rightly respected Washington Post columnist E.J. Dionne. The column is notionally on the McConnell-Grimes Senate race in Kentucky, but the subtext is brought to the fore in the conclusion:

The backdrop of this election is a profound gloom about the state of our continuing national experiment in self-government. That’s why politics here — but in many other places, too — is moving toward nuclear winter. Is it naive to ask if there is still a market somewhere for hope?

Needless to say, I share Dionne's sense of "profound gloom," though where we differ is that much of my own gloom comes from the continuing inability of the punditry to suggest that one reason for the loss of faith in "our continuing national experiment in self government" is the dysfunctionality of the Constitution itself. To be sure, that can't explain the problems occurring in "many other places," though it is not entirely beside the point that many of these "other places" might be in better shape if the United States were capable of responding adequately to the problems facing all states in our globalized political order.

What is most pervasive, perhaps, is the ever extending polarization, which means not only that "We the People" have strikingly different views on a plethora of important topics, but, perhaps more importantly, that there is no longer a genuine "We the People" because each of the polarized sides increasingly sees their opponents not as fellow citizens but as Others to be demonized. And, as Dionne notes, that will certainly be a major motif of the Kentucky election. For better or worse, we are not divided on a completely sectional basis, which would make peaceful secession perhaps a thinkable possibility, nor (undoubtedly for better) are we threatened by genuine civil war because of the divisions. Instead, our national polity is like a Thanksgiving from hell, in which the members of the family stare at each other with daggers, insult one another, and then get drunk, while everyone resolves to try to be elsewhere come next Thanksgiving.

It would be foolish to believe that a new convention (as contemplated, never forget, by Article V) would necessarily be the cure for what ails us, but taking the possibility seriously would at least provide a start to the long overdue conversation that we continue not to have, since it's so much more fun to denounce Mitch McConnell (or Barack Obama) than to wrestle with the political structures that have brought them (and maintain them) in power.

I'm not saying anything really new, so I hope, perhaps naively, that there will not be just more of the same old, same old points made in the comments. What I'm really interested in is whether anyone does not share the "profound gloom" that Dionne evokes and, if not, the basis of the relative optimism. E.g., do any of you looking forward to McConnell's becoming Senate Majority Leader really and truly believe that that will make much of a difference, given Obama's retention of the veto power? To be sure, he will find it ever harder to name anyone to office, but is that a source of real "hope" about resolving our problems. And do any of you looking forward to McConnell's defeat and Democratic retention of the Senate really believe that Congress will address any of the issues you regard as most important in the remaining two year's of Obama's term (assuming, of course, that the Republicans continue to hold the House, but would a, say, five-vote Democratic margin in the House change your analysis all that much)?

Posted 4:44 PM by Sandy Levinson [link] (94) comments

We The People, Volume 3 Symposium

Gerard N. Magliocca

Here are the posts from the Symposium on Bruce's Ackerman's latest book: We The People: The Civil Rights Revolution (Harvard Univ. Press 2014).

Gerard N. Magliocca: Herbert Wechsler's Shadow

Mark Graber: The Constitutional Politics of the Civil Rights Revolution

David Fontana: A Theory of Constitutional Origins

Jack Balkin: Bruce 3.0

Richard Primus: The Future Resists Control

John McGinnis: Enduring Text vs. Embedded Moments

Jamal Greene: The Revolution Might Not Be Canonized

Florence Roisman: The Civil Rights Revolution is Wrong About Housing & The Theory Doesn't Fit The Facts

Or Bassok: The Ackermanian Shout

Bruce Ackerman: A Third Founding: Part One & A Third Founding: Part Two

Posted 2:08 PM by Gerard N. Magliocca [link]

A Third Founding: Part two -- Fidelity or Betrayal?

Bruce Ackerman

II.

Part one may be found at:

http://balkin.blogspot.com/2014/05/a-third-founding-part-one-twentieth.html

The Legacy

Suppose you were convinced that Americans of the twentieth century did indeed rise to the challenges of popular sovereignty -- and that, in many respects, their successes were more impressive than those achieved in previous ages. Like the eighteenth century Founding, the New Deal greatly enhanced the powers of the federal government and fundamentally redefined its relationship to economic and social life. But this time around, a far more diverse group of men and women were actively engaged in higher lawmaking than in the eighteenth century, and they won far larger popular majorities than the Federalists ever achieved in support of their revolutionary reforms.

Similarly, the achievements of We the People during the Second Reconstruction did not involve anything like the desperate embrace of the militarized methods that the First Reconstruction required to assure the ratification of its Article five amendments. Despite all the violence that marked the civil rights revolution, the methods championed by , together with the sweeping political victories of racial liberalism in the Martin Luther King's adaptation of Gandhi-like methods, together with the decisive and bipartisan electoral victories of the 1960s, gained a bipartisan "mandate from the People" for landmark statutes and judicial super-precedents that went far beyond the more formal principles of racial justice endorsed a century earlier.

This is, at least, the thesis presented by the Civil Rights Revolution, and if you find yourself in agreement upon reading the book, we are left with yet-another-problem: It's all very nice for you and me and others to recognize that We the People accomplished great things during the twentieth century. But as Richard Primus cautions, this is hardly enough to assure that the profession as a whole, much less the dominant political class, will heed my book's call to remain faithful to the commitments of the Second Reconstruction.

Posted 10:44 AM by Bruce Ackerman [link]

Wednesday, May 21, 2014

Bottlenecks series at Brookings

Joseph Fishkin

For those who are interested, the Brookings Institution's Social Mobility Memos blog now has its entire 12-part series up about Bottlenecks: A New Theory of Equal Opportunity:

An introductory post from me & a response from Yuval Levin of National Affairs;
a follow-up post from me, two responses from Bill Galston of Brookings, and my reply to Galston;
And then a series of poses by Richard Reeves & Quentin Karpilow of Brookings about different kinds of bottlenecks: first, a post about early child development as a bottleneck, with a response from Isabel Sawhill of Brookings;
then a post about college as a bottleneck, with a response from Andrew Kelly of AEI;
and finally, a post about money as a bottleneck, with a response from the economist Miles Corak.

Posted 10:11 PM by Joseph Fishkin [link]

Tuesday, May 20, 2014

A Third Founding: Part one -- The Twentieth Century Achievement

Bruce Ackerman

For the Symposium on Bruce Ackerman, We The People, Volume Three: The Civil Rights Revolution

The Symposium raises two large themes, with many variations. The first denies that the New Deal and Second Reconstruction were grounded in self-conscious acts of popular sovereignty; the second asks whether the rising generation coming to power in the twenty-first century will remain faithful to the constitutional legacy left behind by their parents and grandparents.

I.

Higher Lawmaking

When legal professionals talk about the Constitution, they tell themselves a two-part story. In dealing with the first 150 years, they emphasize moments when We the People took the lead during the Founding and Reconstruction and the Progressive era. But with the coming of the New Deal, “We the Judges” replace “We the People” at the center of the constitutional stage.

Consider: the same lawyers who parse every word of the great statements by Abraham Lincoln and John Bingham during the First Reconstruction completely ignore comparable speeches by Lyndon Johnson and Hubert Humphrey during the Second Reconstruction. In reflecting on the legacy left by the civil rights revolution, they turn away from the Presidency and Congress and focus exclusively on leading cases like Brown and Loving.

This fixation on the Warren and Burger Courts is a symptom of a larger dis-ease: Whether you are a judge or an advocate, a bureaucrat or a legislative counsel, the place to begin your study of the modern Constitution is with the great decisions of a long line of Justices from Holmes to Scalia. Your main task is to massage these opinions into arguments that will convince the world that the law is on your side. You may, if you like, spice up your brief or opinion with some passing references to complex statutory schemes or elaborate institutional dances involving the presidency, Congress, and the states. But don’t get carried away with such peripheral matters: your real job is to make the most out of the case-law.

If you ignore this advice, the only thing you'll accomplish is to establish your lawyerly incompetence. Since this is not an option, few serious professionals pause to consider the tension between their modern fixation on the case-law and their focus on the great deeds of We the People during the Golden Age. There is an implicit message in this lawyerly turn from the People to the Court: popular sovereignty is dead in modern America.

Posted 9:08 AM by Bruce Ackerman [link]

Sunday, May 18, 2014

Dead People and the War Powers

Mary L. Dudziak

If I was teaching a research seminar on the history of war powers this coming year, my focus would be on dead people. Death is, of course, and intentional product of war. It is produced with both purposefulness and regret. In history, and in contemporary law and politics, it has been important to divide dead people into categories. The categories have tremendous meaning. The most important categories are dead enemy soldiers, dead American soldiers (for the US), dead noncombatants (sometimes called “collateral damage”); and there are also dead soldiers of allies, dead contractors, journalists, and others. The law of armed conflict/IHL is structured around the idea that certain deaths (the enemy) should be produced in a way that minimizes other deaths (the people we might call collaterals). The manner of the production of death also has important meaning. Although the endpoint can be the same (a person has died), the military honors conferred on a soldier can vary depending on how the person’s death was produced: by hostile fire, by “friendly fire,” by accident, by suicide.

That this all matters is apparent in the literature about how deaths are reported (or not), the history of censorship of casualty information, including images, and the way death in war is narrated and is commemorated. The production of death, especially the identity of the prospective dead, has figured powerfully in debates in Congress about impending military action, like the Tonkin Gulf Resolution. And, at least arguably, the availability of death affects the relationship between the broader public and war. Think of the heart wrenching stories of spouses and parents waiting for a letter home from their soldier in World War II. Does the email from a contractor under fire have less resonance because that danger is in exchange for pay? Will there be no touching documentaries about messages home from drone operators, since they often go home at the end of their shifts?

The most important recent work on war and dead people is of course Drew Gilpin Faust, This Republic of Suffering: Death and the AmericanCivil War. “The work of death was Civil War America’s most fundamental and enduring undertaking,” Faust writes. Her work sets up a question for the 20th century and after about the relationship between death and American war politics at a time when most people are protected from the sort of “republic of suffering” broadly experienced during the Civil War.

I will be writing rather than teaching next year, and am trying to puzzle through the particular role that death and dead people will play in my 20th century war powers narrative. An effective narrative strategy in a history book is to use a historical character as the conduit of the narrative and the argument. Rather than having ideas float in space across a chapter, the ideas are often effectively developed by having historical characters live through them across time. A chapter on declared wars, for example, can feature someone like Congressmember Jeannette Rankin who voted “no” on both WWI and WWII, and then, both times, was voted out of office. Her story can illustrate a broader theme: the way Congressmembers figured in the relationship between the electorate and presidents during earlier wars. It is harder to think through the way dead people can be active narrative characters. Usually, as with Pat Tillman, the management of a death by others is the narrative, or the pre-death story is a focus and is thought to inform the meaning of the person’s death.

It may be that dead people themselves can’t be my narrative characters since what matters – the death – is essentially a moment of crossing over from narrative character to memory. Policies and practices related to death have a narrative, and there is a great literature on commemoration. But dead people (across categories) are so important that I wish I could keep them in as active characters rather than as memories. At any rate, if I was working this through with a seminar, here’s what would be on the reading list. (Below the jump.) What sort of works am I missing?
Read more »

Posted 3:17 PM by Mary L. Dudziak [link] (12) comments

Friday, May 16, 2014

Brown and the Civil Rights Revolution

Bruce Ackerman

Tomiko Brown-Nagin, Jeff Rosen, Steven Calabresi, and I got together to discuss Brown's legacy at the Constitution Center on Wednesday evening: http://youtu.be/KALrU_ObB_0

By the way, I'm busily working up my Reply to the very thoughtful critiques of the Balkinization Symposiasts, and I hope to have something postable next week.

Posted 12:12 PM by Bruce Ackerman [link]

Wednesday, May 14, 2014

Parents Involved and the Struggle for Historical Memory

Mark Tushnet

I have a post at the ACS blog with the title above. It's part of that blog's series on the 60th anniversary of Brown v. Board of Education.

Posted 5:47 PM by Mark Tushnet [link]

Tuesday, May 13, 2014

Visiting the UK Supreme Court

Jason Mazzone

Today I attended oral argument at the Supreme Court of the United Kingdom. This was a rather different experience from oral argument at our own Supreme Court. Some impressions:

Arriving at the court, security was quite lax. My bag went through an x-ray machine and I went through an airport-style metal detector. But I was allowed to take everything I had with me—including my camera and cell phone—into the courtroom.

Within the courtroom itself there were no guards. One guard was stationed outside but he wasn’t armed and he seemed mostly responsible for opening and closing the courtroom door quietly.

The court today was sitting in two panels, each hearing one case. I attended the argument in a case involving the government’s refusal to allow an Iranian dissident into the U.K. to address Parliament. That argument was in courtroom 2, a very modest space. The room was about the size of a law firm conference room. Furnishings were plain. There was very little that indicated the room even was a courtroom.

The argument itself was surprisingly casual.

Read more »

Posted 12:20 PM by Jason Mazzone [link] (12) comments

Saturday, May 10, 2014

Cold Respect, Gay Rights, and Religious Toleration

Andrew Koppelman

I was a signer of the recent statement on the Brandon Eich affair, “Freedom to Marry, Freedom to Dissent: Why We Must Have Both,” which denounced the use of blacklists against those who oppose same-sex marriage. Eich, the CEO of Mozilla, was forced to resign by a coordinated boycott of his company – a boycott intended to drive him out - because years earlier he had contributed to the campaign to prohibit same-sex marriage in California. The statement declares:

Sustaining a liberal society demands a culture that respects and welcomes robust debate, vigorous political advocacy, and a decent respect for differing opinions. People must be allowed to be wrong in order to continually test what is right. We should criticize opposing views, not punish or suppress them. . . . We strongly believe that opposition to same-sex marriage is wrong, but the consequence of holding a wrong opinion should not be the loss of a job. Inflicting such consequences on others is sadly ironic in light of our movement’s hard-won victory over a social order in which LGBT people were fired, harassed, and socially marginalized for holding unorthodox opinions.

The statement has now been criticized in two blog posts by distinguished scholars: one by Peter Berkowitz and the other by Ryan Anderson and Robert P. George. Berkowitz writes:

The signatories of "Freedom to Marry, Freedom to Dissent" do not go so far as to acknowledge the merit in arguments against same-sex marriage. ... their public statement indicates that in their view their opponents have little to say that is reasonable. Unwavering in their commitment to same-sex marriage, they imply that those who disagree are at best benighted, ignorant, or confused.

Similarly, Anderson and George:

It is rational to support marriage as the union of a man and a woman, and supporters of same-sex marriage should stand up and say so, condemning attempts to disparage belief in marriage as a conjugal partnership as irrational -- the moral and intellectual equivalent of racism, misogyny, and other forms of bigotry. The statement issued last month falls short of such a declaration, lacking a clear acknowledgment that those with the contrary view hold a rationally defensible position.

I wholeheartedly joined “Freedom to Marry, Freedom to Dissent,” but these writers (all of whom, as it happens, are friends of mine) are asking for more than I can give them. I think that opposition to same-sex marriage was once rational, in the same way that adherence to Ptolemaic astronomy was once rational, but that there is now nothing to be said on behalf of that view. I say this as a proponent of same-sex marriage who has worked at least as hard as any other scholar to understand the other side’s views fairly and accurately.

I don’t think that I have to concede that the view is reasonable in order to respect those who hold it. The demand that I do overlooks the possibility of the kind of cold respect that has for a long time been the basis of American religious liberty.

About four in ten Americans think, most of them for religious reasons, that homosexual sex is never morally acceptable. These people are not homophobic bigots who want to hurt gay people. On the contrary, gay people are marginal to their view of the world. Justice Alito nicely summarizes the position, as it applies to same-sex marriage: “marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” Whatever the merits of this notion, it is not about gay people. It is focused on the value of a certain kind of heterosexual union. The existence of gay people is a side issue. The function of marriage law, on this view, is to protect a human good that gay people happen to be unable to realize: marriage laws do not discriminate against them any more than art museums discriminate against blind people.

I think that these people’s religious ideas are obviously wrong. But that is what I think about an enormous range of religious beliefs. Most Americans surely agree that some religious beliefs are worthless, harmful, weird delusions. They do not agree about which ones. This is nothing new. It is the chronic condition of the United States, probably the most religiously diverse nation in the history of the world.

If tolerance had to be based on a concession that the other guy’s views are reasonable, there wouldn't be much tolerance in the world.

Both gay people and religious conservatives seek space in society wherein they can live out their beliefs, values, and identities. As with the old religious differences that begot the Establishment Clause of the First Amendment, each side’s most basic commitments entail that the other is in error about moral fundamentals, that the other’s entire way of life is predicated on that error and ought not to exist. Coexistence has nonetheless been achieved in the religious sphere. The United States is a longstanding counterexample to Rousseau’s dictum that “[i]t is impossible to live in peace with people whom one believes are damned.”

A particularly troublesome aspect of the Eich affair was the pressure for Eich to publicly recant his earlier political views – pressure clearly intended to intimidate anyone with similar ideas. The ritual of public humiliation that was demanded is unpleasantly reminiscent of the old World War II-era campaigns to force Jehovah’s Witnesses to say the pledge of allegiance. You can recognize the viciousness of those campaigns without thinking that the religious beliefs of the Jehovah’s Witnesses were reasonable.

Some religious beliefs are not only false but destructive. Pertinently here, some give transcendent sanction to discrimination and inequality. When this is the case, they must be deprived of their cultural power. With respect to the religious condemnation of homosexuality, this marginalization is already taking place. But that does not mean that the conservatives need to be punished or blacklisted. There remains room for the kind of cold respect that toleration among exclusivist religions entails. That’s what Brendan Eich is entitled to, and was wrongly denied.

Posted 9:40 AM by Andrew Koppelman [link] (250) comments

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