The journal Criminal Law & Philosophy kindly organized a symposium on my book, with essays by F. Boucher (Montreal) & C. Laborde (UCL), F. Schauer (Virginia), C. Brettschneider (Brown) and P. Jones (Newcaslte). A draft of my reply is here.
Justice Sotomayor (and colleagues) are exactly right about this. Note that Wheaton, a not-for-profit religious organization, is claiming that the requirement to fill out some paperwork in order to be exempt from the requirement to pay for health insurance covering contraception is a substantial burden on its free exercise of religion. The claim is preposterous on its face, as Judge Posner made clear during oral arguments on this issue in the 7th Circuit a couple of months back. I still suspect that when this gets to the Supreme Court, they are going to side with the government, not the Wheatons.
UPDATE: Here's the full opinion. P. 11 of Justice Sotomayor's dissent is very good and goes to the issue the majority got wrong in Hobby Lobby as well. A lot of the dispute here is about the standard for granting injunctive relief under the All Writs Act, about which I know exactly nothing. It is worth emphasizing that the granting of the injunction is not a decision on the merits of Wheaton's claim, it just stays the law until the merits are adjudicated.
Your posts clarified today's ruling, though the whole thing seems rather complicated.
My first response is to suspect that Roberts and Scalia view the constitution and the amendments as an appendix to the Bible.
Is it too cynical to suspect that their ruling was influenced heavily or subtly, by their faith? I'm surprised they didn't quote scripture in their decision.
The logic of the case as it appears to the common sense of the man on the street is that employees are prevented from doing legal actions in their private lives because their bosses feel uneasy with it. In this case because of religious beliefs which are somehow privileged.
In the minutia of the ruling isn't the broader point of the rights of citizens overshadowed?
Your comments puts this in perspective. It's not the end of the world or America. But isn't it disturbing?
I agree it is disturbing, though I have to confess my expectations were so low that I was pleasantly surprised by the way in which the majority opinion tried to narrow the import of the decision. I think there is no doubt that many, perhaps all, members of the majority were influenced a bit by their religious commitments; but even more so, I think they were influenced by their political ideology and the desire to "throw a bone" to the right-wing religious crazies, a point nicely made by law professor Joey Fishkin. The "common sense" perspective Mr. Berman describes aptly captures what is wrong with the Court's finding that a requirement to pay for insurance substantially burdens "free exercise" in this case, a point with which I am wholly sympathetic.
My own prediction is that the decision will generate some nuisance litigation--various family-owned businessed controlled by religious crazies of one stripe or another will try to challenge their disfavored medical procedure, and they will pretty uniformly lose in the lower courts--but that it also poses a real risk for LGBT rights. Justice Alito, a right-wing Catholic, in his majority opinion went out of his way to say that the decision would not exempt a religious racist from having to comply with anti-discrimination laws pertaining to race, but he said nothing about laws prohibiting discrimination based on gender and, more ominously, sexual orientation. The ray of hope here is that Justice Kennedy, who joined the majority in Hobby Lobby, also wrote the rather aggressive majority opinion in Lawrence v. Texas, striking down all homosexual sodomy statutes nationwide; he is likely to view anti-discrimination laws about sexual orientation as on a par with those about race, and so is likely to conclude both that government has a compelling interest in eliminating anti-gay discrimination and that there is no other way to do that than to prohibit such discrimination tout court.
I expanded my earlier posting, for those who might be interested, but let me correct a few mistakes about the decision I've been seing on social media from other philosophers:
1. The decision does not hold that corporations are people with free exercise rights. It holds that closely held corporations, e.g., the family-owned businesses who brought the legal challenge, have free exercise rights. General Motors has no cause of action against anything after today's decision.
2. The decision does not deprive employees of access to contraception. The Court accepts that the government has a compelling interest in insuring such access, and notes that the government had already found a way to insure that such access was met while allowing religious not-for-profit organizations (e.g., the University of Notre Dame) to opt out of paying for it: namely, requiring that the insurers cover the entire cost of such contraceptive coverage for employers with religious objections. The Court points out the same alternative is available for closely held corporations whose owners have religious objections to contraception.
3. The decision was not a constitutional decision; it was based on a federal statute, the Religious Freedom Restoration Act. RFRA is a bad law, and as readers of my book know, I oppose such carve-outs for religion; but given RFRA, the Court's decision is not wholly surprising.
4. It's contentious, but not ridiculous, to argue that closely held corporations can be "persons" for purposes of RFRA. The Court gives some fairly sensible reasons for thinking they can be in the opinion.
5. The major error in the Court's reasoning occurs at p. 36 of the majority opinion (Justice Ginsburg notes this problem at pp. 21-22 of her dissent). The Court has long held that it will not adjudicate whether religious beliefs are sensible, only whether they are religious and sincerely held. But that does not mean that the Court must defer to the religious person's beliefs about whether the law substantially burdens their religion: that is a question for the Court. In this case, it strains credulity to suggest that Smith's sincere religious belief that life begins at conception and that therefore the "morning after" pill is akin to murder is somehow "burdened" because Smith must pay for health insurance which an employee might use to seek medical services of which Smith disapproves. The Court should have found there was no "substantial burden" on Hobby Lobby in my view.
The good, the bad, and the ugly. (This is a comment on the quality of the reviews, not the verdicts they reach!) You would think a very clear, 185-page book would generate more consistently competent reviews, but the topic of religion, alas, seems to be an obstacle.
...is now out, with new essays by Stephen Perry, Barbara Baum Levenbook, Matthew Kramer, Bruno Celano, Michael Giudice, R.A. Duff, C.L. Ten, Hanoch Sheinman, and Luis Duarte D'Almeida. The volumes covers topics in general jurisprudence, as well as the philosophy of criminal law, international law, and contracts, among other topics. Perry's important paper has already commanded attention from jurisprudential scholars.
I'm also pleased to report that John Gardner, the Professor of Jurisprudence at Oxford, will join Leslie Green and me as co-editors of volume 3.
I gave a very short talk on this topic a few years ago, but this new draft paper is a much expanded and more systematic discussion, given as a keynote address in August for the annual meeting of the Australasian Society of Legal Philosophy in Sydney. I hope it will interest some readers, and I would especially encourage those outside general jurisprudence but with some interest in the philosophy of law to take a look, since I hope it clears up some common confusions about positivism and about Dworkin's theory of law.
...either because of this or this, not sure which. Money quotes:
"[O]ne of the most troubling and intellectually discreditable books by a serious American scholar in some time."--Family Research Council
"Students and scholars likely will be citing Leiter's clear and powerful arguments for many years."--Choice
(For non-US readers: Choice is widely used by libraries in deciding what to purchase; the Family Research Council is the main policy arm of the far right Christian movement in the U.S.)
UPDATE: My thanks to Brandon Conley for posting a sensible reply at the FRC blog. Still, I am trying to persuade PUP to use the FRB blurb, above, in promotional materials!
ANOTHER (May 5): There was a second comment pointing out the obvious, that the FRC author had not read the book, but that comment has disappeared. So just in case, here is Mr. Conley's comment from the FRC site, which, happily, is still there:
This review willfully misrepresents Leiter's aim as one of criticizing freedom of religious practice without persecution when Leiter's actual target is the idea that religious practices should receive preferential treatment by being exempted from laws designed for the common good. Here's a quote from an honest synopsis of the book displaying the kinds of questions it tackles:
" Why, for example, can a religious soup kitchen get an exemption from zoning laws in order to expand its facilities to better serve the needy, while a secular soup kitchen with the same goal cannot? Why is a Sikh boy permitted to wear his ceremonial dagger to school while any other boy could be expelled for packing a knife? Why are religious obligations that conflict with the law accorded special toleration while other obligations of conscience are not?"
In other words, Leiter is arguing for equal treatment of all claims of conscience, whether secular or religious. Since by far the most persecuted religious affiliation in the U.S. is atheism (in many states it is illegal for an atheist to hold public office), these questions are important to ask. The FCR is employing the all to common tactic of painting an argument against special treatment as an argument for persecution.
First Things is a conservative Catholic intellectual magazine. An unsigned editorial in the April 2013 issue opines that,
A recent book by...Brian Leiter outlines what may well become the theoretical consensus used to reinterpret the First Amendment. "There is no principled reason," he writes in Why Tolerate Religion?, "for legal or constitutional regimes to single out religion for protection." He buys the ideological [sic] attack on religion, describing religious belief as a uniquely bad combination of moral fervor and mental blindness. It serves no public good that justifies special protection. More significant--and this is his main thesis--it is patently unfair to provide it with such. Why should a Catholic or Jew have a special right while Peter Singer, a committed utilitarian, doesn't? Evoking the principle of fairness, Leiter argues that everybody's conscience should be accorded the same legal protections. Thus he proposes to replace religious liberty with a plenary "liberty of conscience."
Without dwelling on some of the mischaracterizations of my argument (the general thrust of it they have right), it's striking to me that they believe this "may well become the theoretical consensus used to reinterpret the First Amendment." I would welcome that, but I don't expect it to happen in my lifetime. I do think there's more potential in Canada and the European countries, many of which already recognize "liberty of conscience," but have yet, in practice, to extend that much beyond religious claims of conscience. (Of course, I also think there should be no exemptions from laws respsecting the principle of toleration and that promote the general welfare, unless those exemptions do not shift burdens on to others.)
So Princeton University Press tells me they have ordered a new printing of 1,000 more copies of Why Tolerate Religion?, in addition to the 2,000 initial run from October--so while I won't be retiring on the royalties, I must say it's quite a remarkable experience to be on the verge of selling 3,000 hardcover copies of an academic book! Thanks to those of you out there who have bought a copy!
In addition to the event in DC in April, I'll be doing something similar for the Center for Inquiry in Los Angeles in early October; more details on that to come.
THE CONSTITUTION of the United States has its passionate votaries—none more so than Akhil Reed Amar of Yale Law School—as does the Bible. But both sets of worshippers face the embarrassment of having to treat an old, and therefore dated, document as authoritative. Neither set’s members are willing to say that because it is old, and therefore dated, it is not authoritative. Some say it is old but not dated; they are the constitutional and Biblical literalists. But most of the worshippers admit, though not always out loud, that their holy book is dated and must therefore be updated (without altering the text) so as to preserve its authority. They use various techniques for updating....
Amar’s method of updating, which is also the one the Catholic Church applies to the Bible, is supplementation from equally authoritative sources. The Church believes that a Pope receives divine inspirations that enable him to proclaim dogmas that are infallible and thus have equal authority with the Bible. Jesus Christ’s mother does not play a prominent role in the New Testament, but she became a focus of Catholic veneration, and in 1854 the Pope proclaimed the dogma of Mary’s Immaculate Conception (that is, that she had been born without original sin). This and other extra-Biblical Catholic dogmas, such as the Nicene Creed, which proclaimed the consubstantiality of the Son and the Father, form a kind of parallel Bible, equal in authority to the written one, which reached its modern form in the third century C.E.
This is the line taken by Amar. Alongside the written Constitution is an unwritten constitution. They are consubstantial. The Constitution, like the teachings of the Catholic Church, is a composite of a founding document and a variety of supplementary practices and declarations (many of course in writing also). No matter how wild Amar’s constitutional views may seem, he claims that they are in this two-in-one constitution; that he did not put them there.
Actually, despite the book’s title, it is not two in one—it is twelve in one. There is not just one unwritten constitution, in Amar’s reckoning; there are eleven of them. There is an “implicit” constitution, a “lived” constitution, a “Warrented” constitution (the reference is to Earl Warren), a “doctrinal” constitution, a “symbolic” constitution, a “feminist” constitution, a “Georgian” constitution (the reference is to George Washington), an “institutional” constitution, a “partisan” constitution (the reference is to political parties, which are not mentioned in the written Constitution), a “conscientious” constitution (which, for example, permits judges and jurors to ignore valid law), and an “unfinished” constitution that Amar is busy finishing. All these unwritten constitutions, in Amar’s view, are authoritative. And miraculously, when correctly interpreted, they all cohere, both with each other and with the written Constitution. The sum of the twelve constitutions is the Constitution.
One is tempted to say that this is preposterous, and leave it at that.
Needless to say, Judge Posner does not leave it at that, and the criticisms seem to me mostly quite sound.
At the Carnegie Council in New York City and in The New Statesman, where British political theorist John Gray says the book is, "A model of clarity and rigour and at points strikingly original, this is a book that anyone who thinks seriously about religion, ethics and politics will benefit from reading." The former event was an address to an educated audience in New York (lawyers, doctors, bankers, etc.), but not a group of academics. Gray's generous review does make one error worth noting towards the end, namely, that he treats the characteristics of religion I identify individually, whereas the account is conjunctive (I quite agree with the points he makes about some of the characteristics considered in isolation).
A draft of a new essay by Alex Langlinais (a philosophy grad student here) and myself, to appear in the Oxford Handbook of Philosophical Methodology, being edited by Cappelen, Gendler, and Hawthorne. Comments welcome.
The penultimate version (pending some publication editing) of my 2011 Meador Lecture at the University of Alabama, forthcoming in Alabam Law Review in 2013. (Not unrelated to some of the issues in our recent [aborted] poll.)
This is the penultimate draft of what will be the lead paper in volume 2 of Oxford Studies in Philosophy of Law, due out later this year. (Volume 1 is here.) Perry's paper is a major contribution to the literature on authority, and so I hope it will whet the appetite of legal philosophers and those interested in the subject for Volume 2. Other contributors to volume 2 will include Bruno Celano, R.A. Duff, Matthew Kramer, Barbara Levenbook, and C.L. Ten, among others.
This essay reviews and evaluates the arguments in Jeremy Waldron's book "The Harm in Hate Speech" (Harvard University Press, 2012). We may summarize the argument for Waldron’s titular view as follows. First, the “harm in hate speech” results primarily from speech that is written rather than spoken. Second, the harm in question is damage to the “dignity” of vulnerable people based on defamation related to certain characteristics they share with a group, such that they are then deprived of the “assurance…that they can count on being treated justly” (85) in daily life because they are deemed to be “not worthy of equal citizenship” (39). Third, this harm to “the dignitary order of society” (92) is distinct from the individual offense hateful speech may cause, the latter not constituting a ground for regulation on Waldron’s view. Fourth, although regulating to prevent this harm may have some costs, the benefits justify the normal practice in democratic societies of regulating such speech (e.g., 151 ff.). I argue two main points: first, that Waldron's distinction between harm to dignity versus offense is neither stable nor clear; and second, that Waldron's failure to explain why harm to the dignitary order of society is the particular harm of speech that warrants legal redress raises a variety of questions about his view. If the moral urgency animating Waldron's case is the need to protect the vulnerable from harm, why limit that to the harm of losing assurance of "equal standing" or (as he sometimes says) the psychological harm of "distress"?
Consider, for example, what I call "the Ryan case: a powerful congressman, Paul Ryan, proposes to eviscerate and eventually eliminate Medicare, thus threatening to deprive millions of vulnerable, elderly people of essential healthcare. Surely assurance of access to healthcare when in need is at least as important as assurance of dignity in public. Why is this harm, then, not also a candidate for legal redress? I argue that Waldron's view does not have the resources to distinguish the Ryan case, but I do not offer that as a reductio of his position. To the contrary, it seems to me a virtue of Waldron's book is that by making an often vivid case for the harm that the content of speech can inflict on the vulnerable, Waldron forces us to take seriously Herbert Marcuse's old worry: namely, that while the toleration of harmful speech "in conversation, in academic discussion...in the scientific enterprise, in private religion" is justified, perhaps "society cannot be indiscriminate where the pacification of existence, where freedom and happiness themselves are at stake." Waldron does not explore that implication of his argument, but it is one that warrants renewed consideration if one shares Waldron's core intuition that harm to the vulnerable, even harm inflicted by speech, deserves legal notice.
“Legal Realism” now has sufficient cachet that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms—the American and the Scandinavian—with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? There are, of course, other “legal realisms,” old and new, from the “free law” movement in Germany more than a century ago, to the Italian realism of the Genoa School today. My focus, however, shall be on the old and new Realisms that are probably most familiar. Is there anything they all share?
I argue that (1) American and Scandinavian Realism have almost nothing in common--indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. Moore's case is a cautionary note in taking au courant social science too seriously; and Llewellyn's work was necessitated by the fact that the "primitive" peoples he wanted to study did not write their judicial opinions down. For any modern legal culture, such "field work" would be unnecessary on Llewellyn's view.
Continental Philosophy Farhang Erfani, a philosopher at American University, provides a useful set of links to news, events, interviews, reviews, videos, etc. related to "Continental philosophy" (broadly construed)