Freedom of the Church and our Endangered Civil Rights: Exiting the Social Contract

In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some newly recognized by the Court over the last two decades, some with a slightly older lineage, and some sought after but not yet won by litigants—the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society and to thereby create, in effect, separate spheres of individual or group sovereignty into which otherwise binding legal norms and obligations do not reach. They are “rights to exit” civil society and the social compact at its core, or at least, rights to exit some substantial part of it

The Word on Trial

Milner Ball\u27s extraordinary book, The Word and the Law, begins with a narrative account of seven practices in law. The seven practitioners Ball brings to life for the reader share two powerful traits: they all, in quite different ways, use law to lessen the multiple sufferings of various communities of poor people, and they all, by doing so, strengthen the communities within which and for which they labor. The reader gains from these accounts not only a sympathetic understanding of the lives of seven lawyers, but a renewed sense of the possibilities their practices present. This can be put any number of ways. Perhaps most simply, Ball\u27s retelling of these practices opens the possibility of finding in legal practice a vehicle for helping people, for attending with care to the needs of people, for making a change in the world for the better, for acting with compassion toward the end of social justice. These practices deserve our admiration, but they are by no means beyond our grasp. They are human-sized practices that suggest the feasibility, and not just the nobility, of a professional life committed to social justice. Ball employs theological argument, literary interpretation, journalistic reporting, a good deal of personal narrative, and simply, moral reflection to engage the reader directly with both the seven practices and with the texts, biblical, literary, and legal, that he brings to the task of understanding. These meditations are overflowing with insight, suggestion, description, self-revelation, interpretation, and stones within stones within stones. While never sentimental, his meditations are truly heartening. They tell the story of one man\u27s intellectual attempt to make moral and religious sense of his own life, and the lives of some people he admires, in law it is a story, and an intellectual journey, that is well conceived and well told. In the remainder of this Review, I will comment very briefly on two of the theological themes that recur in Ball\u27s meditations and note what I think are some possible connections between his theological arguments and some of our legal practices and habits of mind. Thus, in Part II, I will explore the possibility that the discussion Ball provides of the use of parables in the Bible, and particularly his challenging interpretation of a passage from the Book of Mark regarding the use of parables, might also shed some light on the use of narrative by critical race theorists, as well as some of the recent criticism that narrative jurisprudence has elicited. In Part III, I briefly suggest that the relation for which Ball argues between religion and Belief, or between religious practices and God\u27s Word, may find an echo in the relation between law and justice. I hope that by drawing analogies between the theological arguments Ball makes about religion and the Word, on the one hand, and some of our contemporary debates about law and justice, on the other, I am not trivializing or grossly misstating Ball\u27s positions. I must emphasize that the analogies I draw are mine, not his, and I apologize for any distortion in his positions that may result from my attempt to make a coherent claim that fruitful analogies exist

The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory

Part One of this article provides a phenomenological and hedonic critique of the conception of the human - and thus the female - that underlies liberal legal feminism. Part Two presents a phenomenological critique of the conception of the human - and thus the female - which underlies radical feminist legal criticism. Again, I will argue that in both cases the theory does not pay enough attention to feminism: liberal feminist legal theory owes more to liberalism than to feminism and radical feminist legal theory owes more to radicalism than it does to feminism. Both models accept a depiction of human nature which is simply untrue of women. Thus, both accept, uncritically, a claimed correlation between objective condition and subjective reality, which, I will argue, is untrue to women. As a result, both groups fail to address the distinctive quality of women\u27s subjective, hedonic lives, and the theories they have generated therefore have the potential to backfire - badly - against women\u27s true interests. In the concluding section I will suggest an alternative normative model for feminist legal criticism which aims neither for choice nor equality, but directly for women\u27s happiness, and a feminist legal theory which has as its critical focus the felt experience of women\u27s subjective, hedonic lives. My substantive claim is that women\u27s happiness or pleasure - as opposed to women\u27s freedom or equality - should be the ideal toward which feminist legal criticism and reform should be pressed, and that women\u27s misery, suffering and pain - as opposed to women\u27s oppression or subordination - is the evil we should resist. I will argue that feminist legal theorists, in short, have paid too much attention to the ideals of equality and autonomy and not enough attention to the hedonistic ideals of happiness and pleasure, and that correlatively we have paid too much attention to the evils of subordination and oppression, and not enough attention to the hedonistic evils of suffering and pain. My methodological assumption is that the key to moral decision-making lies in our capacity to empathize with the pain of others, and thereby resist the source of it, and not in our capacity for abstraction, generalization, or reason. My strategic claim is directly entailed: the major obstacle to achieving the empathic understanding which is the key to significant moral commitment, including the commitment of the legal system to address the causes of women\u27s suffering, is the striking difference between women\u27s and men\u27s internal lives, and more specifically, the different quality of our joys and sorrows. This obstacle can only be overcome through rich description of our internal hedonic lives

Re-Imagining Justice

What do we mean by legal justice, as opposed to distributive, or social, or political justice; what is the justice, that is, we hope law promotes? What is the justice that lawyers and judges, peculiarly, are professionally committed to pursue? What is the virtue around which, arguably, this profession, and the individuals within it, have defined their public lives? Justice -- and more particularly legal justice -- is a badly under-theorized topic in jurisprudence; perhaps surprisingly, there is little written on it. The paucity of writing of course has a history. It can be traced to the turn of the last century -- formative years of legal pedagogy and legal curriculum -- when legal formalists and legal realists, who disagreed on virtually everything else regarding law, oddly enough agreed on the need to sever law from moral philosophy and more generally from high culture. Formalists, so as to render law autonomous, deductively pure, scientific, and resting on its own bottom, so to speak, and realists, so as to tie law to the prestige, aspirations, and methods of the then nascent but ascending social sciences. Both realists and formalists, albeit for different reasons, sought to disassociate law from the demands of religion, morals, or culture, generally from the Toquevillian aristocratic norms within which law had been nested in the pre-Classical era. Justice, the great formalist Christopher Langdell thought, was not a fit subject of thought for a rigorous and professional and scientific law school curriculum. Oliver Wendell Holmes, the father of legal realism, quite famously, was even harsher. I hate justice, Holmes wrote. I know that if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms. At least in the legal academy, we have indeed taken the Holmesian admonition to heart. Fearful of appearing sentimental, childish, or, worst of all, ignorant of the law, twentieth century lawyers and legal scholars, with only a few exceptions, have forsook the work of elucidating the concept of legal justice. Holmes and Langdellian skepticism notwithstanding, one can quite easily discern a conventional, and largely uncriticized, turn-of-the-century understanding of legal justice, inside the academy and the profession. It finds oratorical expression in law day and graduation day speeches, in the major unspoken premises of countless conventional legal arguments, and in some, although again not much, jurisprudential scholarship. That conception--call it the dominant or conventional conception-I will argue below, is seriously flawed. More specifically, I want to suggest that it is seriously flawed in a way that directly and negatively affects feminist and progressive efforts at achieving political reform. Feminists and progressives need to take up the task of criticizing our conventional understanding of legal justice. More importantly, we need to take up the task of crafting alternatives

Book Review: Social Justice: The Moral Foundations of Public Health and Health Policy

This essay is a review of Social Justice: The Moral Foundations of Public Health and Health Policy by Madison Powers & Ruth Faden (2006). In this pathbreaking book, senior bioethicists Powers and Faden confront foundational issues about health and justice. How much inequality in health can a just society tolerate? In a world filled with inequalities in health and well-being, which inequalities matter most and are the most morally urgent to address? In order to answer these questions, Powers and Faden develop a unique theory of social justice that, while developed for the specific contexts of public health and health policy, applies equally well to other realms of social policy, including education and economic development. The book includes a careful comparison of Powers and Faden\u27s approach to social justice with those of other theorists, including notably Rawls, Sen, and Nussbaum. With their eyes firmly fixed on the injustices of this world and what is known about their causal determinants, Powers and Faden place a six dimensional theory of well-being at the heart of their theory of justice. They then explore the implications of this theory for public health, the medical market place, and the setting of priorities in health policy. In the process, they arrive at arresting conclusions about the moral foundations of public health, childhood, the relevance of social groups to questions of justice, and the proper role for economic analysis in social policy. The audience for the book is scholars and students of bioethics and moral and political philosophy, as well as anyone interested in public health and health policy

Integrity and Universality: A Comment on Dworkin\u27s \u3ci\u3eFreedom\u27s Law\u3c/i\u3e

Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin has shown that integrity imposes constraints upon and provides guidance to the work of judges in constitutional cases: Every constitutional case that comes before a court must be decided by recourse to the same moral principles that have dictated results in relevant similar cases in the past. Any group or individual challenging the constitutionality of legislation which adversely affects his or her interests is entitled -- morally and legally -- to a reasoned decision illustrating why moral principles held constitutionally dispositive in earlier cases regarding similarly situated groups should not be equally dispositive for him or her. When done well, the result of this method is what Dworkin has called an integrity of principle, which, in turn, is a necessary, albeit not sufficient, condition for the moral justification of the constraints of constitutional law in a democratic state. Stated differently, if constitutional law is to be a part of a morally justified form of democratic self-governance, then the moral principles at its core must be applied even-handedly, and they must be applied even-handedly no matter how difficult, inexpedient, inefficient, or simply politically unpopular it may be, from time to time, to do so. Finally, commitment to such a view defines membership in the party of principle, intended as a contrast to the membership of the party of history, who defends and locates rights not by reference to general principles even-handedly applied, but rather, by reference to whether the argued right respects distinctions honed and honored by tradition. In these comments, I want first to suggest a non-relativist argument for the necessity of integrity to constitutionalism, intended, frankly, to resolve the above noted tension, and to do so by identifying the grounds for integrity and principle in neither the interpreted constitution nor in liberalism, but in a substantive value that is deeper and broader than both, and hence both informs and constrains both. The constraint of integrity, I will argue, arises not from the sail of constitutional precedent itself, which goes wherever the wind blows it, nor from liberalism per se, but from a source external to both, which accordingly constrains the direction which constitutional authority might take. The argument that I will suggest is by no means inconsistent with Dworkin\u27s arguments and indeed is strongly suggested in much of his earlier writing, particularly Law\u27s Empire. In the second part of my comments, I will suggest some limitations on this conception of integrity. Finally, I will offer a friendly amendment to Dworkin\u27s account of integrity

Justice Roberts’ America

Less than a week after the Roberts Court issued its decision in National Federation of Independent Business v Sebelius, Jeffrey Toobin, writing in The New Yorker, compared the first part of Chief Justice John Roberts\u27s opinion, in which he found that the Commerce Clause did not authorize Congress to enact the individual mandate section of the Affordable Care Act (ACA) that requires all individuals to buy health insurance, with an Ayn Rand screed, noting that the pivotal sections of the argument were long on libertarian rhetoric but short on citations of authority. Roberts held (although held might be stating it too strongly) that the Commerce Clause does not authorize Congress to regulate the inactivity of individuals—the act of not buying health insurance—even if that inactivity impacts interstate commerce. Rather, the Clause only authorizes congressional regulation where there is some activity of a commercial nature there to be regulated. Injecting a dose of libertarian and individualist thinking more typically associated with the Lochner-era\u27s substantive due process jurisprudence into Commerce Clause reasoning, Roberts argued that the inactivity of not buying insurance is tantamount to doing nothing, and doing nothing cannot be characterized as commercial activity even if it has a commercial impact

Murdering the Spirit: Racism, Rights, and Commerce

Patricia Williams\u27 The Alchemy of Race and Rights: The Diary of a Law Professor, is an eloquent, profoundly original, and often brilliant collection of interdisciplinary essays and stories concerning the impact of racism and poverty on the human spirit; the historic and continuing role of law and legal institutions in defining, facilitating, and perpetuating those harms; and the possibilities and dangers imminent in the attempt to use law to effect a remedy for them. This is a book that we should celebrate: it reminds us that books are occasionally very, very important, that reading can be transformative, and that writing sometimes can be and should always strive to be a moral act of the highest order. In the first Part of this review, I will briefly discuss just three of the substantive and disciplinary accomplishments of this book, and then I will present two possible objections (and possible responses) to some of the implicit and explicit theses the book defends. It is my view, however, that the greatness of this book lies neither in its disciplinary breakthroughs nor in its explicit analysis of race and law. The book\u27s importance and uniqueness is in what it shows about the nature of private racism, which Williams provocatively calls a form of spirit-murder -- the generic disregard for others whose lives qualitatively depend on our regard. Much of Williams\u27 book is given over to rich personal depictions of both the nature of the act of spirit murder thus defined and, more importantly, perhaps, the nature of the injury its victims experience. Thus, in the second and major Part of this review, I will try to describe spirit-murder, the depiction of which I take to be the heart of Williams\u27 contribution to our modem understanding of race relations in this country. In the concluding Part, I will review the two possible legal paths toward compensating or correcting the multiple injuries of spirit-murder that Williams describes. The first, toward which Williams is deeply ambivalent, consists in the related worlds of commerce and contract. If spirit-murder is, in its legal sense, that injury that results from being the object rather than the subject of property, contract, and commerce -- a legal disregard felt most dramatically by the slave -- then inclusion as subjects rather than objects in the world of commerce might be thought an adequate remedy. The promise, however, that the injuries sustained from the legacy of slavery would be eradicated simply through the legally mandated inclusion of African Americans in this country\u27s commerce has turned out to be at least somewhat illusory. Consequently, both commerce and the law of commercial relations play a pivotal but deeply ambiguous role in Williams\u27 book. The second route of recovery, about which Williams is less equivocal and far more hopeful, is through an expansive and avowedly utopian conception of rights

A Marriage is a Marriage is a Marriage: The Limits of \u3ci\u3ePerry v. Brown\u3c/i\u3e

The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples—the right to the appellation of one’s partnership as a “marriage”—for no rational reason. The people of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of minimal rationality required for upholding state action. The two types of couples were simply too indistinguishable to carry the weight of the difference between them that the people of California had tried to codify. Thus, the court struck down the state constitutional amendment. The court did so, however, by relying heavily on facts peculiar to California’s political history, thereby limiting the case’s disruption of democratic processes in both California and elsewhere, and, not incidentally, minimizing the size of the target the case presents should the presumptively hostile Supreme Court review the decision. First, Proposition 8 removed an entitlement that had been granted by the California Supreme Court just a few years earlier. The case thus arose in a posture not shared by other cases involving same-sex marriage: what was at stake was the constitutionality of a referendum that took away—rather than failed to grant—same-sex marriage. Second, California, by statute, guarantees to same-sex couples a “domestic partnership” which statutorily grants all of the legal incidents of marriage, including rights of parentage and adoption. Because of the first fact—that what the Court was faced with was the withdrawal of a preexisting right—the Court did not have to reach the question of whether same-sex couples possess a “right to marry” where it has never before been recognized. Because of the second fact—that all that was at stake in California was the appellation “marriage” since the domestic partnership laws guaranteed to same-sex couples all other incidents of marital status—there was no need for the Court to decide whether there would be a “rational basis” for a state to refuse to grant the right to marry to same-sex couples on the basis of the purported superiority of child-raising in families headed by opposite-sex partners: the case simply does not raise these questions, since California’s statutory scheme grants equal family status to both sorts of couples, and Proposition 8 did not upset that. The court did not, therefore, have to decide that there exists a “fundamental right to marry,” or that any restriction on the rights of gay people to marry would violate fundamental constitutional values. Rather, it narrowly held that Proposition 8, which stripped gay citizens only of the appellation “married” and left all other incidents of marriage intact, worked a dignitary and psychic harm on gay and lesbian partners, and did so for no defensible reason. This decision is thus of no relevance to cases challenging a state’s refusal to extend marriage to include gays and lesbians, and it is of no relevance to cases challenging a state’s withdrawal of such a right if that right is also accompanied by a denial of concrete benefits and accompanied by some explanation—such as the superiority of hetero-sexual parenting—for the decision to do so. Perry v. Brown is nothing more than a sui generis decision for a unique set of facts. Thus, creative minimalism

Rights, Harms, and Duties: A Response to \u3ci\u3eJustice for Hedgehogs\u3c/i\u3e

The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of individuals understood capaciously. Rights may be positive or negative, legal, constitutional, political, institutional, or moral, and might have either libertarian and regressive or egalitarian and redistributive consequences. Regardless, we should think about our collective life through the lens of individual rights rather than through the lens of the moral duty of legislators, state actors, lawmakers, or, simply, sovereigns, to make good law in the interest of the governed: the duty of lawmakers to exercise their lawmaking power in morally responsible or virtuous ways. Rights of citizens, not the moral duties of lawmakers, should guide our thinking in both politics and law. Third, the political principles that should inform our law are those which require us collectively to respect the rights of individuals to decide for themselves on the content of a good life, and do not permit or require us to collectively make those decisions and impose them on individuals through law. To live well, we must each decide for ourselves what it is to live a good life. Government must protect the individual latitude we need to live well, and that includes refraining from dictating or legislating on the basis of any state-generated understanding of the content of the good life