Looking Beyond the New Numbers on Poverty

The U.S. Census Bureau has released the income and poverty figures for Americans in 2013, and they offer at least a glimmer of light in an otherwise quite somber landscape. The glimmer is the poverty rate, which fell from 15 percent in 2012 to 14.5 in 2013, with statistically significant improvements occurring, notably, among children and Hispanics.

102271790Left: Native American man and child with American flag by Lauri Lyons/Photonica World,
Getty #102271790

 

 

 

 

 

 

The gloom—although it’s not really news at this point—comes from the absence of the kind of improvements Americans have been looking for since the end of 2008–2009 recession. The number of poor people (45.3 million) is basically unchanged from the numbers of the two previous years. And while the situation for many children may be improving, the poverty rates for youth transitioning into adulthood (ages 18–24) and for young adults (ages 25–34) were no better than those of the previous year—and this despite rising education levels among these two key cohorts of the workforce. Education is still America’s great engine of upward mobility, of course, but high-school degrees and even college diplomas are not helping as many Americans move in the right direction. (And indeed the debts incurred through hefty college loans are leaving many struggling grads in dire financial straits. )

Extrapolations from the data reveal further disturbing trends. According to analysis by the Brookings Institution,  for instance, the number of poor people in the nation’s 100 largest metropolitan areas has grown by 10 million between 2000 and 2013, with the suburban poor population growing twice as fast the the number of urban poor. Brookings researchers Elizabeth Kneebone and Natalie Holmes summarize the pattern this way:

Four years into the recovery, America’s metro areas—like the nation overall—had achieved only modest progress toward reducing poverty to its pre-recession levels. Where gains did occur, they tended to happen in big cities, further accelerating a long-term trend in the suburbanization of U.S. poverty and the challenges that accompany it.

But more troubling than all of this is an underlying economic trend that puts more and more individuals and families on the edge of poverty: the continued flattening of real wage growth for most American workers. Indeed, since 2000, according to the Economic Policy Institute, real wage growth has been negative for those in the bottom 30 percent of wage distribution, a reality that puts many workers only one missed paycheck away from falling below the poverty line.

Numbers and trends such as these are common fodder for the debate over who’s winning or losing the War against Poverty, a campaign launched fifty years ago by President Lyndon B. Johnson. For reasons I discussed in an earlier blog, the overworked war metaphor has itself become a problem, whether used by liberals in dedicating themselves to the struggle against poverty or by conservatives in describing the failure of Big Government to defeat it.

In addition to creating unrealistic goals and expectations, the war metaphor ends up placing even more stigmas on the poor, stigmas that are used by some to blame the poor for their poverty and by others to deny them responsibilty or agency. The stigmas also contribute to the related and reflexive view that poverty is exclusively a problem of others, not equally one of the larger society or our political economy.

How, then, do we think beyond the numbers, the metaphors, the stale single-cause explanations? The fall issue of The Hedgehog Review invites reader to consider the ways we have come to think about, act in behalf of, depict, or judge those people whose only truly common distinction is their limited—sometimes desperately limited—means. We ask readers to question whether their own assumptions and perceptions are themselves contributing to an increasingly divided commonwealth, in which zero-sum thinking seems to be the guiding principal of our political economy.

One metaphor often used in discussing the poor—the trope of the “invisible poor”—receives much-needed scrutiny from several contributors to the fall issue, including literary scholar John Marsh. Tracing a long and distinctive line of authors who saw themselves as exposing the hidden realities of poverty in order to enlighten and encourage the sympathy of better-off readers, Marsh questions whether the project of class discovery didn’t quickly run its legitimate course. After all, despite repeated fictional and journalistic exposés, the alienation between the well off and the poor seemed only to grow. Writers such as James Agee in Let Us Now Praise Famous Men, for example, struggled with feelings of bad faith, worrying that his writing was becoming, in effect, “poor-nography,” an exploitation of the very people whose lives he was trying to document and enter into.

Exposing the invisible poor may have become an exhausted moral and literary trope, but it is hard to abandon it when the reality of the last four decades has been a growing separation between the classes, with less interaction and fewer places of intersection between the middle and upper classes, one one side, and the less well off, on the other. Conservative social critic Charles Murray in Coming Apart describes a radical divide between what he terms the new upper class and the new lower class, a divide that has effectively destroyed a common civic culture through which values were once broadly inculcated and reinforced.

Looking beyond that widening divide, several of our authors describe the places and institutions where the poor, whether working or not, are finding support and community, making connections, pulling themselves up by the bootstraps. But as noted author and educator Mike Rose explains, many of the strongest institutional supports for the less well off—the public library, among them—are themselves in a precarious condition. Today, too many  Americans simply fail to appreciate the mutiple benefits that a well-supported local library brings to people who have very little cultural, intellectual, and even social infrastructure on which to rely.

Social research and resulting public policies themselves contribute to misunderstandings about the poor and poverty, argues historian Alice O’Connor. By trying to locate a single pathology or set of root causes (whether cultural, biological or even neurological), American social analysts repeatedly advocate policies that aim to “fix” people while neglecting or even ignoring the wider and deeper social and economic forces that make poverty, in the minds of some people, an acceptable and even necessary component of an efficient, competive economy. In short, says O’Connor, “poverty research has become caught up in a paradox of its own making—of diminishing insight into the problem of poverty amid more, and more intimately detailed, data about the poor.”

O’Connor also cites sociologist Mark Rank’s recent observation that economic hardship has become a widespread, diversified, and even “mainstream” experience affecting a majority of Americans during the course of their lives. In a first-person account, critic and novelist William McPherson explores his own descent into such hardship, recounting some of the ways that poverty complicates almost every aspect of daily existence. Anthropologists Michael and Ines Jindra, in their report from the world of the safety net, provide a glimpse into the many predicaments and problems that drive a diverse assortment of people to seek help from various independent, nonprofit assistance agencies. They also bring to light the concerns and challenges of the people who work in these agencies. “Taken together,” the authors say, “these and other nonprofits provide a window on some of the colliding and commingling subcultures that make up the kaleidoscopic world of the poor.”

Photographic depictions of the poor have also played a crucial role in America’s discourse on poverty, and the fall issue of THR honors that body of work through a photo gallery and essay that features the work of many of our outstanding photographers and documentarians. These are images that capture the granular details of hard lives, attesting as much to strength and resilience as to struggle and weariness.

“Thinking About the Poor,” the fall issue of The Hedgehog Review will be available November 1 at select Barnes & Noble bookstores or by ordering online. Subscribe in print ($25 one year) or digital ($10).

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Do We Really Take Science Too Seriously?

846px-Johannes_Cordua_Arzt_in_seinem_Studierzimmer
In his recent article at The Week, “How Our Botched Understanding of ‘Science’ Ruins Everything,” Parisian entrepreneur and writer Pascal Emmanuel Gobry addresses a real problem: Misunderstandings of what science is and how it works can lead people to trust too much in claims that simply appear to be “scientific.” To address these misunderstandings, he offers a precise definition for science: “the process through which we derive reliable predictive rules through controlled experimentation” (emphasis in original). Unfortunately, the understanding of science that Gobry singles out isn’t the only one that’s mistaken.

Gobry is right to point out that for many people today, the most difficult moral, political, and even religious questions can be resolved or dismissed on the basis of little more than press releases about the latest studies. Because we don’t understand science, he continues, we face all manner of civil and political disasters, particularly when we turn to a problem like climate change: “While it is a fact that increased carbon dioxide in the atmosphere leads, all else equal, to higher atmospheric temperatures, the idea that we can predict the impact of global warming … 100 years from now is sheer lunacy.”

After all (the article explains) scientific knowledge is not “capital T-Truth” nor is it “‘true’ knowledge, since it is knowledge about only specific empirical propositions—which is always, at least in theory, subject to further disproof by further experiment.”

But these statements about science suffer from the same lack of epistemic humility that the rest of the piece rightly decries. Continue reading

The Right of Assembly Violently Wrested

The images of the Ferguson protests will haunt us for years to come. Some violent actions were properly quelled by law enforcement; some violent agitators properly subdued. But in the first few days of protests, law enforcement ran roughshod over the First Amendment right of assembly. And black Americans took the brunt of that beating.

It was not the first time. The right of peaceable assembly has been at the heart of the struggle of African American equality throughout our nation’s history. When honored, it has yielded important protections. When breached, it has facilitated widespread and systematic oppression.

During the antebellum era, citizens in southern states recognized the significance of assembly and routinely sought to prohibit its exercise among slaves and free blacks. Throughout the antebellum era, white citizens petitioned state legislatures to intensify restrictions on assembly against African Americans. In 1818, citizens in North Carolina petitioned for restrictions against “the Numerous quantity of Negroes which generally assemble,” and forty years later sought “to relieve the people of the State from the evils arising from numbers of free negroes in our midst.” In South Carolina, citizens petitioned in 1820 to ban churches established “for the exclusive worship of negroes and coloured people.” And in Mississippi, citizens distraught over “crowds of negroes, drinking, fiddling, dancing, singing, cursing, swearing, whooping, and yelling, to the great annoyance and scandal of all respectable and order loving persons,” sought in 1852 to restrict “any noisy or clamorous assembly of negroes.” Similar petitions unfolded in Virginia and Delaware.

Southern legislatures embraced these restrictions. A 1792 Georgia law restricted slaves from assembling “on pretense of feasting.” In South Carolina, an 1800 law forbade “slaves, free negroes, mulattoes, and mestizoes” from assembling for “mental instruction or religious worship.” An 1804 Virginia statute made any meeting of slaves at night an unlawful assembly. In 1831, the Virginia legislature declared “all meetings of free Negroes or mulattoes at any school house, church, meeting house or other place for teaching them reading or writing, either in the day or the night,” to be an unlawful assembly.

The restrictions on assembly intensified following Nat Turner’s 1831 rebellion in Southampton County, Virginia (pictured above). Turner’s insurrection sent Virginia and other southern states into a panic. Virginia governor John Floyd made the rebellion the central theme of his December 5, 1831, address to the legislature. Floyd believed that black preachers were behind a broader conspiracy for insurrection and had acquired “great ascendancy over the minds of their fellows.” He argued that these preachers had to be silenced “because, full of ignorance, they were incapable of inculcating anything but notions of the wildest superstition, thus preparing fit instruments in the hands of crafty agitators, to destroy the public tranquility.” In response, the legislature strengthened Virginia’s black code by imposing additional restrictions on assembly for religious worship.

Concern over Turner’s rebellion also spawned additional restrictions on the assembly of slaves and free blacks in Maryland, Tennessee, Georgia, North Carolina, and Alabama. By 1835, “most southern states had outlawed the right of assembly and organization by free blacks, prohibited them from holding church services without a white clergyman present, required their adherence to slave curfews, and minimized their contact with slaves.” The following year, Theodore Dwight Weld aptly referred to the oppressive restrictions on blacks as “‘the right of peaceably assembling’ violently wrested.”

The extent of restrictions on the assembly of African Americans is evident in an 1860 opinion of the Louisiana Supreme Court, African Methodist Episcopal Church v. City of New Orleans. In 1848, a group of ten free blacks had established the African Methodist Episcopal Church as “a private corporation having a religious object,” pursuant to the state’s statute governing the organization of corporations. Two years later, the Louisiana legislature amended the relevant statute to provide that “in no case shall the provisions of this Act be construed to apply to free persons of color in this State, incorporated for religious purposes or secret associations, and any corporations that may have been organized by such persons under this Act for religious purposes, or secret associations, are hereby annulled and revoked.” New Orleans then passed an ordinance that outlawed “assemblages of colored persons, free and slave” “for purposes of worship . . . unless such congregation be under the supervision and control of some recognized white congregation or church.” In rejecting the claims of church members against the city, the Louisiana Supreme Court opined that “the African race are strangers to our Constitution.”

The early twentieth century saw the emergence not only of the National Association for the Advancement of Colored People (NAACP) but also of Marcus Garvey’s more audacious Universal Negro Improvement Association (UNIA). Garvey’s organization drew tens of thousands of members. He capitalized on symbolic expression that upended social norm:

Parading through Harlem on August 2, 1920, the UNIA’s massed ranks took three hours to pass by. A chauffeured automobile, preceded by four mounted policemen, conveyed Marcus Garvey, the Provisional President of Africa, in the manner befitting a head of state. Resplendent in brocaded uniform and cocked hat, Garvey acknowledged the cheering onlookers with a regal wave of the hand. More cars trailed behind him, carrying regalia-attired lesser officials, including the Knight Commanders of the Distinguished Order of the Nile .

Then came thousands of walking rank-and-file. Uniformed contingents marched in proud lockstep: the Black Star Line Choir, the Philadelphia Legion, the Black Cross Nurses, the Black Eagle Flying Corps, the African Motor Corps. Swaying bands from Norfolk and New York City “whooped it up.” Then a forest of banners, each emblazoned with a slogan—variations on “Africa for the Africans!”—snaked its way down Lenox Avenue. They were borne aloft by UNIA members who came from Liberia, Canada, Panama, British Guiana, the Caribbean islands, and a dozen states of the Union. Hundreds of cars and more mounted policemen ended “the greatest parade ever staged anywhere in the world by Negroes.” (quoted in Liberty’s Refuge)

The historian Adam Fairclough cautions against dismissing “Garveyism” as mere showmanship; for one thing, it “reflected a popular fad of a type all too common in the 1920s—when millions of Americans, whites and blacks, donned exotic hats and robes to become Masons, Elks, Oddfellows, and Shriners.” Garvey’s contemporaries took him seriously, and he became “the first black nationalist—the only one before or since—to create a mass movement.” The movement proved short-lived, due in part to Garvey’s contentious positions and unconventional alliances (among other views, Garvey espoused racial separatism and “racial purity” that earned him the support of white segregationists). But as Fairclough observes, unlike the NAACP, Garvey’s UNIA “was entirely led, controlled, and financed by black people,” and it “fostered racial pride in ways the NAACP simply could not.”

In 1937, the Supreme Court decided the appeal of Angelo Herndon, a young black man affiliated with the Communist Party in Georgia who had attempted to organize black industrial workers. Four years earlier, Georgia had convicted Herndon of attempting to incite an insurrection under a Reconstruction era law and sentenced him to eighteen to twenty years’ imprisonment (the insurrection conviction was a capital offense, but the jury had recommended mercy). The state had argued that Herndon was “attempting to organize a Negro Republic in Georgia.” The trial court emphasized that Herndon “was an organizer and induced a number of persons to become members of the Communist Party,” an “attempt to induce others to combine in [violent] resistance to the lawful authority of the state.” The Communist Party’s International Labor Defense pursued his appeals, and within two years, “white liberals, labor leaders, and other citizens joined blacks and radicals in viewing the conviction as a serious threat to basic civil liberties, especially the rights of free speech and free assembly.” After Herndon had spent years languishing in a Georgia prison while his appeals went up and down the courts, the Supreme Court concluded that the statute under which he had been convicted was “merely a dragnet which may enmesh anyone who agitates for a change of government.” Herndon’s efforts to solicit members and hold meetings fell squarely within the boundaries of the right of peaceable assembly. As the Court noted, “the power of a state to abridge freedom of speech and of assembly is the exception rather than the rule.”

The right of assembly also figured prominently in cases overturning convictions of African Americans who participated in peaceful civil rights demonstrations during the 1960s. Martin Luther King, Jr. recognized its importance. In his Letter from a Birmingham Jail, King asserted that the city’s ordinance denied “citizens the First Amendment privilege of peaceful assembly and protest.”   And in his speech, I’ve Been to the Mountaintop, delivered just prior to his assassination, King proclaimed: “Somewhere I read of the freedom of assembly. . . Somewhere I read that the greatness of America is the right to protest for right.”

Strangely, by the end of the 1960s, the right of assembly had largely disappeared from American constitutional law. The Supreme Court, in fact, has not addressed an assembly case in thirty years. But Ferguson—and the history toward which it points—shows us why assembly cannot be forgotten.

John D. Inazu is associate professor of law and political science at Washington University in St. Louis, and a faculty fellow at the Institute for Advanced Studies in Culture. This essay is adopted from his book, Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale University Press, 2012).

Monkey Takes Selfie, Lawsuits Ensue

Monkey takes photos on camera

In 2011, British photographer David Slater was working in Indonesia when some mischievous macaques bumped his camera and set off a whirring noise that caught their attention. The macaques investigated and began taking hundreds of out-of-focus images. However, one inquisitive female did succeed in taking a sharply focused self-portrait with a winning toothy smile (at right). In short order, Slater sold the photos to Caters News Agency Ltd., an independent news and photo agency in the UK. The smiling macaque photograph went viral and found its way to Wikipedia. For the past few years, Slater has been involved in a lawsuit against Wikipedia, objecting that the image has been absorbed into its more than 22 million piece inventory without his permission and without compensation.

Slater claims that the free use of this image is damaging his income and requested in January 2014 that Wikipedia remove the image. As of today, one of Slater’s images—or rather, another of the macaque’s self-portraits—is still there. Wikipedia claims the right to display the photograph under the Creative Commons license. (Creative Commons, according to a guide on the Harvard Law School website, is a nonprofit that facilitiates sharing and reuse of knowledge via free legal and technological tools: “These tools are not alternatives to copyright laws, rather they work alongside them.”) In its entry for the Celebes crested macaque, Wikipedia gives the photo credit as public domain, and when one clicks on the image (a non-smiling macaque), the source is given as Daily Mail; the English description reads “Self-portrait of a female Celebes crested macaque (Macaca nigra) in North Sulawesi, Indonesia, who had picked up photographer David Slater’s camera and photographed herself with it.” The link to the Daily Mail article, “Cheeky Monkey!” (July 4, 2011), apparently published before the ruckus, details the monkeys’  antics during Slater’s trip. This article includes a second photograph, also taken by a macaque, of another monkey grasping Slater’s finger.

Slater is back in the news and many commentators, with varying degrees of seriousness, are weighing in on the issue of who owns the copyright. Slater laughingly says that “If the monkey took it, it owns copyright, not me, that’s [Wikipedia’s] basic argument. What they don’t realize is that it needs a court to decide that.”

According to an August 6 article in The Telegraph, Wikipedia “‘does not agree’ that the photographer owns the copyright, but also that US law means that ‘non-human authors’ do not have the right to automatic copyright of any photographs that they take. . . . To claim copyright, the photographer would have had to make substantial contributions to the final image, and even then, they’d only have copyright for those alterations, not the underlying image. This means that there was no one on whom to bestow copyright, so the image falls into the public domain.”

Bartleby-like, Wikipedia prefers not to agree that the photographer owns the copyright and so consigns it to the public domain presumably without consulting Slater. (It is likely that any rights appertaining to Slater’s photos are owned in some degree by the Caters News Agency to whom he sold the images whole or in part.)

Rather, it might be more instructive to consider the degree of Slater’s authorship in these images, or in the words of Wikipedia’s lawyers, to what degree the photographer’s “substantial contributions to the final image” affect his relationship to them.

No one disputes that Slater invested time and money to travel to Indonesia with the purpose of generating income. What role did his expertise and equipment play in his ability to generate viable images? Typing this as I am on my employer’s equipment, this question has a unique resonance. The writing, research, and expertise that I bring to the task would be useless if I did not have the machinery to advance my project. Very well, but who owns the copyright to what I’m writing? I would assert that as the author/writer/creator of this creative content, it is my property and I own the copyright. U.S. copyright law affirms this, unless I chose to relinquish all or part of the work to another entity.

But what if three chimps showed up at the office one day and began typing away and created, let’s say, Hamlet (with apologies to playwright David Ives who portrayed this very thing hilariously in Words, Words, Words). It wouldn’t be a copyright infringement for the chimps to type out Hamlet unless, of course, they claimed it as their own work, in which case it would be plagiarism. But what if they created a unique literary work, perhaps even a blog post, on my machine and I published it as my own work. Could the chimps rightfully sue for copyright infringement? Would they even have legal standing as authors?

Setting aside the absurdity of this premise and returning to the macaque’s selfie, let’s look at some circumstantial details of Slater’s case. Without sounding too species-centric, had Slater been photographing human subjects, he would most likely have required a model release in which the subject grants the photographer some degree of legal use. I think we can safely assume that Slater did not present, nor did he receive, a signed model release from any of the inhabitants of the North Sulawesi macaque preserve.

What of his presence among the macaques at the Indonesian preserve of Selamatkan Yaki? Was he a nuisance, or did his efforts further the cause of species preservation? According to its website, Selamatkan Yaki is funded in part by ecotourism and has regulations in place to protect the monkeys from injury, disease, and excessive contact with neighboring human communities. “Despite their natural curiosity,” writes program manager Harry Hilser, “we advise all visitors to keep a distance of five meters, as dictated by the Code of Conduct produced by the Indonesian Forestry Department.” In a video on The Telegraph dated August 6, 2014, Slater says, “The monkeys followed me around, I followed them around, they got used to me, and they eventually started grooming me.” From this statement, one could conclude that Slater definitely violated the park’s distance policy, was perhaps a nuisance, and, to a degree, invaded the macaques’ privacy.

For three days, Slater hoped for what he called the “perfect shot”—one of the macaques full in the face. “I realized,” Slater told The Telegraph, “that it wasn’t going to happen, not unless they took the photograph themselves.” He set up a camera on a tripod with a cable release and let nature take its course. The macaques, naturally intelligent and inquisitive, became intrigued by the camera and pressed the button. After all, they had seen him doing something similar for several days. In this writer’s opinion, authorship of the selfie in question belongs to the macaque; as for copyright, I’d like to argue that it is shared by both the macaque and Slater who both made “substantial contributions to the final image.”

The International League of Conservation Photographers (ILCP), a nonprofit organization that aims to “to further environmental and cultural conservation through ethical photography,” supports Slater’s position, arguing that the photographer and his images are part of larger mission—that of conservation of endangered animal species. The ILCP argues that even though Wikipedia may be operating legally within U.S. copyright law, they should recognize the difference between what is legal and what is right. Wikipedia should act, asserts ILCP, according to the photographer’s wishes and the issue of copyright need not enter into it.

It may not be possible to assess copyright ownership with finality in this case, although one can assert that the photographs would not have been possible without Slater, his expertise, and his equipment. If the episode draws some much needed attention to the plight of an endangered species, so much the better. However, we need never worry about the extinction of the litigious homo sapiens.

Leann Davis Alspaugh is the managing editor of The Hedgehog Review.

A New Approach to Poverty

At the end of July Representative Paul Ryan of Wisconsin, more widely known as the 2012 Republican vice-presidential nominee, unveiled a new set of sweeping policy proposals to tackle poverty in America. But in a summer with so many crises around the world and at home—ISIS on the move in Iraq, a jetliner shot out of the sky over strife-torn Ukraine, Israel battling Hamas in Gaza, Ebola spreading through west Africa, and a crisis on the Texas border, to name just few—Americans have had little time to think of matters beyond the horrific headlines.

But as the poet Philip Larkin said, “sun destroys the interest of what’s going on in the shade.” And what’s going on in the shade is that Ryan has proposed a plan to tackle poverty that isn’t just about cutting the welfare bill. Why is that of interest?

Cast your mind back to the 2012 presidential campaign. Why did Mitt Romney choose the young congressman from Wisconsin to be his vice-presidential candidate? Because after the enormous federal budget deficits of the Bush presidency,  Ryan was the man with the plan to restore the GOP as the party of fiscal conservatism. “The Roadmap to America’s Future” was what Ryan called the budget that Republicans rallied behind. Romney picked Mr. Austerity in 2012.

It is therefore nothing short of extraordinary that a line on page 14 of Ryan’s report declares “that this is not a budget-cutting exercise—this is a reform proposal.” The report goes on to say that the idea is not to cut existing resources—we’re talking about some $800 billion dollars—but to use them more effectively. Of course, how resolute you are about tackling poverty shouldn’t be measured by how much you spend. But in the context of the career of the House budget committee chairman, either this is an extreme instance of bad faith or something—the vision, the task at hand, even the man himself—has changed.

Recall one more thing about the 2012 presidential campaign, something that might be even more vivid in our collective memory.  Remember when Romney was not just quoted but filmed saying that 47 percent of Americans “who are dependent upon government, who believe they are victims”’? The absolute nadir of those remarks was:  “My job is not to worry about those people [emphasis added]I’ll never convince them they should take personal responsibility and care for their lives.” Of course, that wasn’t Ryan speaking. But he was the man’s running mate.

An Electronic Benefits Transfer (EBT) station at a market in Union Square allows people to purchase fresh fruits and vegetables using food stamps.

Ryan has started to worry about those people. That’s the significance of “Expanding Opportunity in America.” He’s started to worry about those people in households receiving food stamps whose transport costs to and from work threaten to push them into deeper poverty. He’s started to worry about those young men stuck in cycles of generational drug addiction, with neither high school diplomas nor family to fall back on. And he’s started to worry about single mothers caught in the vicious bind of being unable to earn enough to afford childcare and so being unable to work at all.

As I listened to Ryan set forth his proposals at a low-key think-tank breakfast, the congressman’s singularity of focus and sense of urgency was undeniable. “I don’t have all the answers. Nobody does,” he began, “but we have an obligation to deliver change… and to do that we need to to stop listening to the loudest voices in the room, and start listening to the smartest voices in the room.”

One of the smartest voices in the room was actually in the room. He spoke next. Bob Woodson, a veteran African-American civil rights activist, leads the National Center for Neighborhood Enterprise. Ryan introduced him as “my friend and my mentor.” Their connection runs deep—as a younger man, Ryan worked on the Hill with Bob Woodson, Jr., before he was killed in a car accident in 2003. For the last year and a half, Woodson has taken Ryan on a tour of “some of the most dangerous zip codes in America.” Once a month, they’ve gone to different community organizations in the inner city, each connected to Woodson’s network: rehab centers, homeless shelters, churches, gang-ridden schools.

When I asked Mr. Woodson what he thought was the single greatest influence on Ryan of these largely unpublicized visits, he replied: “They have him given hope that answers do exist. That people can triumph over despair in the worst circumstances.”

One such organization is Emmanuel Baptist Church in Indianapolis. In a city with one of the highest crime rates in the nation, Rev. Dr. Darryl Webster saw directly how many young black men were getting killed. Nine years ago, he started a series of “Come Back Camps” where young men undergo a kind of boot-camp training to get their lives in order. Starting at 5:45 am, mentors coach teenagers and men in their early twenties in key life lessons. “We’re empowering people because of a relationship,” Rev. Webster tells me. Their success rates—equipping young men to withstand the drug culture, helping them find and hold jobs, getting others into college—have been outstanding. Webster’s vision is even more expansive. “Government,” he says, “needs to do a better job at identifying the places that are change-agents, places that are already doing it… Then [it] could come alongside organizations and make them service-providers.” That vision lies at the heart of the Ryan reforms.

The centerpiece of Ryan’s proposals is a new pilot project called the “Opportunity Grant.” Right now, individual states receive funding for as many as 92 different federal programs. Pilot states could choose to receive the value of up to 11 of these as one payment. The point is to allow states greater room to innovate, to channel funding streams that in the past were strictly dedicated to one or another form of assistance (such as food stamps) toward new aid programs. (Ryan has been quick to preempt the historic suspicion of “block grants,” funds of which have frequently been redirected toward non-welfare projects. Participating states, he insists, will have to “spend that money on people in need—not roads, not bridges, no funny business.”)

Where do the community “change-agents” come in? One route would be through the stipulation that participating states have to use at least some of the consolidated cash to support nongovernmental organizations “with a proven track record.” The goal here is to provide the poorest with more providers to choose from. 

To grieve over a gridlocked Congress or America’s profound polarization is to resort to cliché. Whether on the left or the right, few remain unaware of those features of the twenty-first-century political landscape. This makes what Ryan’s doing in the shade all the more interesting. He is also advocating, for example, a major new employment incentive almost identical to the one the president wants to introduce: a wage subsidy for a key group that has largely missed out on one in recent years—young adults without children. It’s a tragedy that people in the prime of their lives find themselves out of the job market. One solution: double the maximum tax credit for childless workers and drop the threshold from 25 to 21 years old.

Ron Haskins, senior fellow at the centrist Brookings Institution and one of America’s top welfare experts, believes these proposals hold out real hope of a bipartisan breakthrough. There are lots of things Democrats and Republicans can agree on, Haskins told me. Who wouldn’t value a proper commission looking at how you can really tell if safety-net programs are working? And when it comes to tackling poverty, Haskins emphasizes, “It’s not just Republicans who think states should have more flexibility.”

Ryan’s encounter with the inner city has changed his mind about something else, Woodson tells me: the criminal justice system. Again, Ryan was moved by a positive, not a negative. Meeting ex-prisoners “whose lives had been redeemed,” in Woodson’s words, made Ryan question the present harshness of sentencing in the United States and the resulting levels of incarceration.  Judges, in his view, need more discretion so they don’t have to impose mandatory draconian sentences.

To attempt bipartisanship is to find some common ground, enough common ground. It doesn’t mean winning over the whole of the opposition. Clearly, many on the left will never accept the enhanced conditionality Ryan favors, or any possible threat to entitlements such as food stamps (if they are folded into “opportunity grants”).

For Ryan, though, a greater threat than his opponents may be his friends. The bipartisan promise of the proposals may be the very thing that distances him from his own party. The response of John Boehner, Speaker of the House, couldn’t have been cooler. Conceding that poverty is an issue in America, Boehner added that “there’s probably a debate about what that help looks like.” Hardly encouraging words. Ryan’s alienation would end any hopes he may harbor of a run in 2016. But it would also mean Republicans miss a huge opportunity by again becoming too fragmented over a vital policy front to make a deal with the Democrats—or, if they capture the Senate this autumn, even to put proposals on the president’s desk.

Another major obstacle to Ryan’s plan is the direction religious liberty issues are going in America. At the heart of Ryan’s vision are grassroots civil society organizations that will be contracted by government to distribute welfare to the poorest. A significant proportion of those organizations will be faith-based. Yet only days before Ryan launched his report, President Obama signed an executive order sweeping aside the religious exemption for federal contractors that discriminate against employees on the basis of sexual orientation. What this portends, as happened with Catholic adoption agencies in Britain in 2004, is that the very organizations that are most needed as local “change-agents” in the fight against poverty could no longer receive money from the state.

But if Ryan does somehow manage to overcome these obstacles, if he can rally his Republicans around his ideas—and it wouldn’t be the first time—who knows what could happen? John le Carré dedicated his novel, The Constant Gardner, to an aid worker named Yvette Pierpaoli who “lived and died giving a damn.” Maybe one day the same will be said of Paul Ryan.

James Mumford is the Postdoctoral Wolterstoff Fellow at the Institute for Advanced Studies in Culture and the author of Ethics at Beginning of Life: A Phenomenological Critique.

And Who Is a Person? The Problem with Hobby Lobby (Part II)

In my previous post, I suggested that the Supreme Court’s move to extend religious protections to closely held companies by expanding the concept of corporate personhood was both novel and open to contestation. That it is novel is a point for legal historians to decide; that it is open to contestation is, on a basic level, undeniable. My argument, however, was this: As a matter of first principles, if personhood is recognized through encounter rather than ascribed through identification of capacities or the sheer will of an individual, then describing Hobby Lobby as a person in any recognizable sense of the term requires us to give full and detailed first-hand accounts of who it is we encounter when we encounter Hobby Lobby.

Hobby LobbyOf course, we can retrospectively give an account of the constitutive features of the person we have encountered. And I realize that the court does not hold the view that “natural” persons and “corporate” persons are synonymous. However, the phenomenology of encounter obliges us to think more carefully about the threshold question regarding the extension of first amendment religious protections. What is it that we encounter in Hobby Lobby? And how does a flat but universally applied concept of corporate personhood comport with our experience? The “useful fiction” of corporate personhood is often very useful. But how do we know when it oversteps its utility?

I concluded with a promissory note regarding the Wheaton College v. Burwell order that came down days after Hobby Lobby. In this post, I will recount the details of that ruling and register two basic concerns, one regarding Wheaton’s substantive claim—that it would be complicit in moral evil by alerting its insurance provider of its exemption claim—and one returning to the question of corporate personhood.

Wheaton College v. Burwell

What was the Wheaton decision and how does it relate to the broader question of religious liberty claims after Hobby Lobby? The facts of the case are as follows. Located in Illinois, Wheaton College is one of the nation’s oldest and most prestigious evangelical universities. Wheaton’s original complaint came in two parts. First, like Hobby Lobby, Wheaton requested to be exempted from providing coverage for the four contraceptive treatments and devices they take to be abortifacients. But in a second step that goes beyond Hobby Lobby, Wheaton argued that signing the government ordered form (EBSA Form 700) intended to convey this request and sending it to its insurance provider was functionally equivalent to providing the contraceptives themselves. The reasoning here was that the act of signing the EBSA Form 700 was a “trigger” that sealed a contractual relationship between the college and the insurance provider, according to which each party knew full well that the full panoply of contraceptive services would be provided to Wheaton’s employees and students. Moreover, although Wheaton would be formally exempt from payment for such services, Wheaton argued that there “is no way to ensure that the cost of administering the contraceptive and abortifacient services would not be passed on to religious organizations through the third party administrator’s fees.” This, Wheaton argued, constituted a governmental “shell-game” that made Wheaton complicit in “grave moral evil,” and, as such, substantially burdens Wheaton College’s religious freedoms.

By requesting a less burdensome route in their injunction request, Wheaton shifted their tactics slightly. Whereas much of the rhetoric of Wheaton’s original complaint was focused on the constitutionality of what is called the “Final Mandate” itself, here Wheaton was pushing the court to clarify the “least-restrictive” standard it had preferred in Hobby Lobby. After Hobby Lobby, was the court going to entertain further claims for exemption when employers argued that being involved in the “existing, recognized, workable, and already-implemented framework” for providing coverage made them complicit in moral evil?

In an unsigned, four-paragraph opinion that drew a scathing dissent from Justice Sonia Sotomayor, the court ruled in Wheaton’s favor. Further, the court appeared satisfied that the government was aware of Wheaton’s exemption and that the college need not fill out the one-page EBSA form and send it to their insurance provider—in other words, Wheaton could also be exempted from alerting the insurance provider or third party adminstrator (TPA) of their exempt status. As Justice Sotomayor argued in her dissent, this appears to create further governmental bureaucracy with no apparent limiting principle.

Wheaton and Complicity

So what are we to make of the Wheaton ruling and its likely implications for our ongoing debate about religious liberty and religious institutions in American public life?

The first thing to say is that Wheaton’s position runs counter to the best intuitions of evangelical thinking on bioethical matters. As Molly Worthen’s recent work, Apostles of Reason: The Crisis of Authority in American Evangelicalism rightly notes, one of the defining features of evangelicalism is precisely what it lacks—namely, an overarching authority structure capable of issuing authoritative statements on matters of ethical or doctrinal concern. Lacking the magisterium of the Roman Catholic Church, evangelicalism in America has always been a diffuse network (or network of networks) of church leaders, publication houses, institutions of higher learning, and para-church organizations. Accordingly, in bioethical matters, and on the question of the morality of contraception in particular, it has been up to individual denominations and Christian ethicists to render their own judgments.

This emphasis is not accidental because evangelicalism has often considered the individual before God not just the subject of moral change (as in conversion) but also the primary moral agent (as in ethics). As such, the relation of evangelical leaders to their congregations and circles of influence is characterized by counsel, teaching and persuasion, rather than a fixed and rigid binding of the conscience.

Consider, for example, the findings of an important but now little known gathering of Protestant evangelicals in August of 1968. In an event co-sponsored by the Christian Medical Society and the editors of Christianity Today (most notably, Carl F.H. Henry), numerous medical professionals, legal scholars, and theologians came together in order “to seek to establish moral guidelines for decisions which will be medically sound, rooted in a biblical ethic and which will be of pragmatic value to the practicing physician and minister.”

In their deliberations, these evangelical theologians were consciously seeking to chart a course for evangelical Protestants between two schools of theology very much alive at the time. One the one hand, a strong doctrine of natural law was on the ascendency within the Roman Catholic Church, coming to full flower in Pope Paul VI’s declaration in Humanae Vitae, that, in order to observe the norms of natural law, “each and every marriage act must remain open to the transmission of life.” When published in the late summer of 1968, Humanae Vitae would not only solidify the Roman Catholic position that any and all artificial means of contraception were intrinsically immoral but also the grounds upon which this claim is justified—namely, the “natural” ends of marital sexual intercourse. On the other hand, however, was the so-called “new morality” that was often associated with the work of liberal Christian ethicists like Joseph Fletcher and John A.T. Robinson and referred to as “situation ethics.” For Fletcher and others, the particular injunctions and rules emerging from Christian scripture are, to put it plainly, revisable in light of an overarching concept of agape, or Christian love. Rules that apply equally in all cases—an absolute prohibition against lying, for example—are, on Fletcher’s reckoning, but “illuminative maxims,” subject to a basic cost/benefit analysis wherein the question of what is most in accordance with love is primary.

Against each of these options, these evangelicals pursued norms capable of guiding conduct. And, as ever, they derived these norms from the scriptural witness. In the record of their gathering, published as Birth Control and the Christian in 1968, we find “A Protestant Affirmation of the Control of Human Reproduction” that makes this much clear. In a subsection titled “Christian Conscience, Natural Law, and Legal Authority” we read:

“The Scriptures inform us that all men are bound by God’s moral law. To this fact, the universal phenomenon of conscience bears witness. Because of sin, men are severely limited in their ability to perceive the content of this law. Apart from the guidance of Scripture and the Holy Spirit, men tend to equate it with the mores of their particular culture. Nor do we believe that ethical judgments can be based on the situation alone. While the individual must consider the circumstances present in each situation, his ethical decision should be controlled by biblical principles.”

Placed next to Wheaton’s request for injunction, what is striking about this affirmation is its epistemic humility and rhetorical restraint. Principles like the “sanctity of family life,” the “mitigation of the effects of evil,” and the “preservation of God-Given Life” are present, to be sure, but the line between recommendation and prescription is always held intact. This is often referred to as the path between “legalism” and “license,” a path evangelicals often pursue by insisting that each and every individual stands before God, responsible for his or her actions, and his or her actions alone. Ever wary of unduly burdening the consciences of their flocks, these evangelical leaders were providing biblical counsel, surely, but always charting a middle path between the perceived flimsiness of the situationists and authoritarianism of the Roman Church.

Granted, much has changed since 1968. If there was a time, as the noted historian of American religion Martin Marty put it, when evangelicalism could at once be “cognitive minority” and “socio-cultural majority,” that time has most certainly passed. Moreover, with respect to medical technologies, the emergence of all kinds of assisted reproductive technologies (ART) that sever what Christians have long held as the “unitive” and “procreative” goods of sexual union has caused profound shifts in our common reproductive social imaginary. What is now routine—say, pre-implantation genetic diagnosis—was merely the stuff of science fiction at the time.

But as is evident in Wheaton’s requesting of this emergency injunction, much has changed within Protestant medical ethics as well. As I see it, the quest for what the Princeton ethicist Paul Ramsey called “middle-axioms” that could guide faithful action precisely by respecting the distance between theological proclamations and individual points of decision has manifestly failed. In fact, it is very difficult to read the aforementioned “Protestant Affirmation” that was formulated under Carl Henry’s auspices, and not ask: What understanding of complicity causes Wheaton College’s leadership to consider themselves morally responsible for the contraceptives their employees and students may or may not make use of in the first place? And even more to the point, does not the distinction between submitting EBSA 700 to their insurance provider and alerting the government through some other means strike us all as the paradigmatic case of scrupulousness?

There is also a civic rationale for Wheaton to be more forthcoming. An increasing number of American citizens may come to view all religious liberty claims as either insincere attempts at self-protection or concerted efforts to rule society from the margins unless there is fuller disclosure of what Richard Rorty called our “final vocabularies,” particularly from religious organizations. This means that in addition to meeting the court’s rather low requirement that religious positions be “sincerely held,” Wheaton’s willingness to give a full and public account of its moral and theological reasoning on this matter would be a great contribution to our ongoing debate regarding religion in public life. In a world as pluralistic as ours, is this not the least Wheaton (and other organizations) owes?

Whither Religious Liberty?

My second concern is more prospective and cautionary—and therefore tentative.

In my observation, most of the current writing on religious liberty is characterized by generalization and worry. For those who hold some version of the view that “religious liberty is under attack”—and I am certain we will see more of this with the recent presidential executive order regarding federal contractors—one struggles to find references to major cases wherein religious protections have recently been extended, as in the 9–0 decision affirming the constitutionality of the “ministerial exception” rendered in Hosanna-Tabor v. EEOC in 2012. From the other side, there is a noted uptick in the thinly veiled contempt for religious belief that generates either mockery or absurd overstatement. These diatribes may be useful for raising funds or increasing internet traffic, but they rarely comport with the facts. Rather, what they convey is a crisis of confidence in our capacity for self-governance.

What is needed is widespread recognition that religious liberty is not a concept that admits easy generalization. It is, rather, a site of contestation, a concept with an intellectual history that cannot be divorced from the justificatory role it has played, particularly in jurisprudential settings where it has been developed. This much is manifestly true.

The basic question posed to each side is this: Is it possible that the current expansion of liberties and protections comes at the cost of a unitary concept of corporate personhood that could, at a later point, cut the other way? While the order granting Wheaton’s injunction request did not deal with Wheaton’s assertion that it was being treated as “second-class” religious institution because it was not directly tied to an ecclesial body, it is clear that the litigation regarding religious exemptions is shifting toward the myriad nontraditional (that is, nonecclesiastical) institutions that make up the American religious landscape. Para-church ministries, faith-based nonprofits, and now, post–Hobby Lobby, some closely held for-profits will all seek status under the umbrella concept of corporate personhood recently expanded.

But could we not envision a future in which the same legal construct provokes so much public disfavor that it is used to constrict rather than expand protections? Take, for example, a scenario in which the ministerial exception solidified in Hosanna-Tabor is combined with the expanded notion of corporate personhood from Hobby Lobby and applied to employment law. Given that entities like Hobby Lobby are now granted first amendment protections on the grounds that they are not too dissimilar from religious nonprofits, must they now characterize their employees as “ministers” in order to be protected from employment discrimination claims? While the majority addressed this line of thought in Hobby Lobby, it is clear that these types of suits are forthcoming.

Does this not call for a better concept of corporate personhood that would allow us to differentiate between various types of entities and religious liberty claims?  For all its immense power, the credibility of the court depends, on some level, on its capacity to persuade a sufficient portion of the populace that its rulings are not conclusions in search of justification.  To do this, it should unveil both the internal rationality of the steps it has taken in arriving at a judgment and the contours of the concepts it uses in doing so.  And for their part, religious organizations of all kinds should take up the task of doing more (and not less) to unveil their basic beliefs to the public at large. Barring this, intractable conflict seems to be our fate.

Philip Lorish is a dissertation fellow of the Institute for Advanced Studies in Culture and a doctoral candidate in the University of Virginia’s Department of Religious Studies.

Political cartoon: Adam Zyglis, The Buffalo News, March 31, 2014; used by permission.

And Who Is a Person? The Problem with Hobby Lobby (Part I)

Hobby LobbyReactions to the Supreme Court’s Hobby Lobby decision have been immediate, visceral, and at times vituperative. Moreover, the tone of most involved in our ongoing debate regarding the place of religious institutions and actors in our common life has been, more often than not, either self-congratulatory or apocalyptic. In a kind of a Rorschach test of the American culture wars, the Court’s ruling in Hobby Lobby represents, on the one hand, the end of liberal democracy and the emergence of a patriarchal theocracy, or, on the other, simply the first step toward granting a small degree of vindication to persecuted minorities who want nothing more than to be left alone to practice their faith.

In this and a subsequent post, I hope to steer clear of the tonal extremes. The stakes are too high for sloganeering and rank partisanship. Rather, I hope to do two things: first, to introduce the basic facts of the case and the ruling, highlighting what I take to be the key conceptual underpinnings of the court’s ruling; and, second, to question the adequacy of the concept of personhood operative within the ruling. While it is clear that Hobby Lobby comes among a recent set of cases expanding the rights and protections of corporate entities, what concept of personhood, I want to ask, undergirds the court’s judgment that for-profit corporate entities can express religious beliefs? In a subsequent post I will take up the concept of complicity.

This analysis is offered in the hope that, by clarifying some of the central concepts at work in this case, a better argument can take shape. By “better,” I mean something akin to “less opaque,” and by “argument” I mean something like “common deliberation” wherein parties approaching the question from differing points of view can assist one another in coming to some degree of common judgment.

Hobby Lobby: The Facts of the Case

The facts of Burwell v. Hobby Lobby are fairly straightforward. Hobby Lobby is a closely held, for-profit company incorporated in Oklahoma that began as a single arts-and-crafts store and has grown to a chain of more than 500 stores with roughly 13,000 employees across a number of states. Here “closely held” signifies that Hobby Lobby is owned and operated by the Green family who started the company. Being closely held affords the owners a greater degree of control over the chain’s culture and a different degree of legal protection. According to Hobby Lobby’s statement of purpose, as a family business, the Green family desires to “honor the Lord in all they do by operating the company in a manner consistent with Biblical principles.” According to the Green family, this commitment has found expression in a variety of ways: Hobby Lobby is not open on Sundays, it pays above the minimum wage, it does not stock shot glasses, and so on.

The Greens claimed that such efforts to express their sincere religious beliefs within their corporate environment had been substantially and unduly burdened by a particular feature of the 2010 Affordable Care Act (ACA), passed by Congress, signed into law by President Barack Obama, and upheld by the Supreme Court. More precisely, the Greens held that the federal mandate to provide their employees with health insurance coverage for particular contraceptives that, in their view, take effect after the moment of conception makes them complicit in moral evil that is against the tenets of their Christian faith. Further, they stated, the federal mandate to provide such contraceptives violates their religious liberty. They do not claim that providing access to all forms of contraception make them complicit in moral evil, only that providing four of the 20 federally mandated forms of contraception listed under the ACA’s guidelines regarding “preventative care” do.

For its side, the government, both in its briefing and as represented by Solicitor General Donald Verrilli in the oral argument, did not dispute the sincerity of the Greens’ religious beliefs but, rather, suggested that something like the “harmonious functioning of a society like ours,” which is, by all accounts, intensely and increasingly diverse in matters of religious belief and practice, was at stake. By this, the government called attention to one of the perennial questions regarding requests for religious exemptions from generally applicable laws—namely, the effects of religious exemptions on “third parties.” If, the argument goes, employees of Hobby Lobby have constitutionally protected rights to access to contraception (which they do), and under the Affordable Care Act, the owners of Hobby Lobby are legally obligated to provide health insurance coverage to their employees (which they are, or else they pay a penalty), does the Greens’ claim regarding the violation of their sincerely held religious beliefs justify the burden placed on some third party that would be responsible for providing contraceptive coverage? The government does not question the sincerity of the Greens’ religious belief regarding the beginning of human life or their claim that to provide insurance coverage for the four contraceptive devices and techniques would make them complicit in moral evil; it simply argues that the Greens’ desire for a religious exemption does not outweigh the government’s interest in ensuring that all women have access to the full panoply of constitutionally protected and FDA-approved contraceptive services.

What Did the Court Hold?  

In a 5-4 decision, the court ruled in favor of Hobby Lobby, determining that a closely held, for-profit corporation could, in fact, be granted a version of personal status that entails protections regarding religious liberty.

Writing for the majority, Justice Samuel Alito describes the court’s reasoning in three basic claims. In a sometimes sprawling opinion, the majority held:

  1. The Religious Freedom Restoration Act of 1993 (RFRA) “applies to regulations that govern the activities of closely held for-profit corporations” like Hobby Lobby.
  2. The Government’s contraceptive mandate “substantially burdens the exercise of religion.”
  3. Even though the Court assumes that the Government has a compelling interest in providing cost-free contraceptive coverage, the Government has failed to show that the contraceptive mandate of the 2010 Affordable Care Act is the “least restrictive” means of accomplishing that end.

Internal to the opinion (and a powerful dissent from Justice Ginsburg) is an attempt to delimit the reach of such a decision. Although some legal scholars have made the case that “from now on, only RFRA cases matter,” in deciding the case in favor of Hobby Lobby, the majority makes explicit that the “narrowness” of its decision is directly tied to the fact that Hobby Lobby is “closely held” and only applies in federal cases.

What proved decisive was the court’s willingness to extend religious protections to some for-profit entities and the application of the least-restrictive-means standard, which Alito characterized as “exceptionally demanding.” If the government’s interest in providing contraceptive coverage to female citizens is so great, Alito writes, “the most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.”

But Who Is a Person?

What provoked Congress to enact the Religious Freedom Restoration Act? As the majority opinion in Hobby Lobby clearly states, RFRA was passed in 1993 in large part as a response to the court’s ruling in Employment Division v. Smith (1990). Authored by Justice Scalia, the ruling held that members of the Native American Church were not entitled to unemployment benefits after being fired for failing to comply with employment policies against illegal drug use. Although peyote was used for sacramental purposes, the court held in Smith that laws prohibiting illegal drug use were “generally applicable”—that is, not explicitly targeting religious belief or practice—and, as such, accommodations for religious use should be sought through legislative rather than judicial means. It is in response to this notion of “generally applicable” laws that RFRA was crafted.

And yet what was never in question in Smith, but hotly contested in Hobby Lobby, was the question of the petitioner’s status—the first step in the majority opinion. Who was it that was asking the government for a judgment regarding the legality of certain religious beliefs or practices? In Smith, the defendants were, by all accounts, persons in every sense of the term. In Hobby Lobby, this was anything but clear. While the “legal fiction” of corporate personhood has, of course, been operative within constitutional jurisprudence since the nineteenth century and serves a number of useful legal functions—allowing corporate entities to enter into contracts with each other, for example—at issue here was how far the concept could be extended. At what point does a useful legal fiction fail to be useful?

The majority’s reasoning is most succinctly stated in the second paragraph of Judge Kennedy’s concurrence. It begins:

In our constitutional tradition, freedom means that all persons [emphasis added] have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. . . . It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.

So far, so good. But, Kennedy continues:

But in a complex society and an era of pervasive governmental regulation, defining the proper realm for free exercise can be difficult. In these cases the plaintiffs deem it necessary to exercise their religious beliefs within the context of their own closely held, for-profit corporations. They claim protection under RFRA, the federal statute discussed with care and in detail in the Court’s opinion.”

It is this move, this extension of protections to for-profit corporations (closely held), that has moved early commentary from the legal academy to conclude that the most enduring legacy of Hobby Lobby may not be in the area of religious liberty but, rather, in an expanded (and expanding) notion of corporate personhood. For their part, Senate Democrats—including some who helped craft RFRA in the early 1990s—protest on precisely this point. “When we wrote RFRA back in 1993 we did so to protect individuals with strong religious beliefs and give them the presumption they have always enjoyed. That they should be able to exercise their religious beliefs without interference from the government,” Senator Charles Schumer explained in a press conference introducing the Protect Women’s Health from Corporate Interference Act, proposed legislation co-sponsored by Senator Mark Udall of Colorado, Senator Patty Murray, and others. Schumer continued, “The court took that and applied it—misapplied it—to for-profit companies who exist for the purpose of benefitting from the open market, working in the marketplace under our laws.”

Political realities make it highly unlikely that such a bill will become law, but the basic question posed by Hobby Lobby is how expansive the concept of personhood actually is. Can it rightly be stretched in such a way as to include for-profit entities, however sincere and uniform the religious beliefs of their owners, employees, or shareholders? The court has ruled that it can, but should it?

From the Legal to the Philosophical: Personhood and Recognition

The concept of personhood is vulnerable to political controversies, because, as German philosopher Robert Spaemann observes,  personhood has always been a nomen dignitaries—that is, a concept that, when applied, confers a certain amount of basic respect. “To ascribe ‘personal existence’ is,” according to Spaemann, “to recognize that someone can claim a certain kind of treatment from anyone who encounters him.” Persons deserve respect and protection. By the mere fact of being what they are, there are certain forms of treatment that are owed and certain forms of mistreatment that must be justified, if not avoided. In this view, personhood is not something that we ascribe to one another. It is not akin to the conferral of status that is the result of birth, some significant personal accomplishment, notoriety, and so on; rather, it is a concept that emerges through the phenomenon of encounter. According to this line of thought, personhood is something that can only be recognized, never conferred.

Arguably, the basic pre-legal philosophical question the court faced in Hobby Lobby was this: On what grounds can we deem a closely held corporation like Hobby Lobby the type of person that is capable of expressing religious belief and therefore be worthy of religious protections?

The majority argued that since the concept could include both individual actors (as in Smith) as well as some nonprofit corporate entities (such as churches), it could be extended to cover for-profit corporate entities as well. By extension, so the logic runs, if there are not-for-profit corporate entities that can have their religious liberties protected and it can be established that certain closely held, for-profit entities share some objectives with those not-for-profit entities (such as donating profits to charitable causes or expressing corporate convictions regarding the need to protect the environment, etc.), on what grounds are we to presume that closely held, for-profit entities do not deserve protections as well?

But if we are to be faithful to human experience, there is good reason to question this line of thought. In recent years, the question of personhood has been taken up by a variety of moral philosophers working within the tradition of phenomenology that extends at least back to Edmund Husserl and Martin Heidegger. For thinkers working within this tradition of thought, useful knowledge regarding the status of another is gathered between people. Rather than beginning from the premise that personhood is something that we give to one another, phenomenologists argue that it is something that exists prior to our cognitive assent and, as such, must be discerned. To be true to human experience, then, we should not (and properly speaking, cannot) begin by listing the properties and capacities that constitute the category person before searching hither and yon for an entity that possesses a sufficient quantity of those properties and therefore meets a threshold that gives us confidence that they are, in fact, a person. Rather, in relationship with others, we recognize what is already there—namely, another person, both like me and unlike me.

This is why, ironically, perhaps, one of the most fecund areas of thought for the phenomenology of human personhood has been the question regarding the pre-natal human life. As Oliver O’Donovan has argued, “We discern persons only by love, by discovering through interaction and commitment that this human being is irreplaceable.” Furthermore, as my colleague, James Mumford, has argued in his book Ethics at the Beginning of Life, attending to the phenomenology of human emergence through pregnancy and birth calls into question another legally useful threshold question, namely, viability.

So, how could the public debate around Hobby Lobby be enhanced by thinking phenomenologically rather than casuistically, as is the court’s wont? To start, it would refocus the object of analysis and call for detailed. first-hand descriptions of what it is we encounter when we encounter Hobby Lobby.

In a piece published before the Hobby Lobby ruling came down, conservative political theorist Patrick Deneen did just this. In a move that did not endear Deneen to his fellow conservatives, he marshalled Karl Polanyi’s critique of modern individualism to claim that making use of the concept of personhood to defend a big-box store that is, in every conceivable sense, part of a depersonalized global economy, is deeply and problematically ironic. It is also pushing a legal fiction beyond the limits of its historical or appropriate use. As Deneen writes:

How delicious he would doubtless find the irony of a “religious corporation” seeking to push back against the State’s understanding of humans as radically autonomous, individuated, biologically sterile, and even hostile to their offspring. For that “religious corporation” operates in an economic system in which it has been wholly disembedded from a pervasive moral and religious context. Its “religion” is no less individuated and “disembedded” than the conception of the self being advanced by the State. It defends its religious views as a matter of individual conscience, of course, because there is no moral, social, or religious context to which it can appeal beyond the autonomy of its own religious belief. Lacking any connecting moral basis on which to stake a social claim, all it can do in the context of a society of “disembeddedness” is seek an exemption from the general practice of advancing radical autonomy. Yet, the effort to secure an exemption is itself already a concession to the very culture and economy of autonomy

It would also require us to attend to the subject of my next post: the phenomenon of complicity.

Philip Lorish is a dissertation fellow of the Institute for Advanced Studies in Culture and a doctoral candidate in the University of Virginia’s Department of Religious Studies.

Political cartoon: Adam Zyglis, The Buffalo News, March 31, 2014; used by permission.

Trigger Alert

I liked it better when trigger was the name of a horse. As almost everyone knows, when Roy Rogers’s trusty steed died, the cowboy had him stuffed and put on display. Had Rogers attempted this homage today, he would have drawn the fire of animal cruelty fanatics.

Fanaticism may be the best way to describe the latest political correctness convulsion in the academy and certain other precincts of the wider society: the trigger alert. For some time, it has been a minor sport at our house to note how Hollywood’s ratings system describes potentially traumatic elements in movies. Usually, the warnings assure us that no animals were harmed (the perpetually rampant Trigger might beg to differ) or that dangerous stunts have been performed only by qualified stunt actors. But lately, movies have begun to give us detailed warnings about violent themes, intense sequences, sexual innuendo, drug use, and smoking. In the recent sci-fi thriller Oblivion with Tom Cruise and Morgan Freeman, a warning appeared in the end credits to assure viewers that the cigar that Freeman so boldly smoked as leader of the underground rebels was used only for artistic purposes. This was followed by a mini-lecture on the adverse effects of second-hand smoke. I suppose we should be grateful that Hollywood has not yet begun plastering retroactive warnings on classic movies where actors smoke with great style and willful abandon. Somewhere along the way, warnings and disclaimers entered the red zone and escalated into triggers.

Commentary on trigger warnings has been circulating for some time in print and the blogosphere. In case you missed it, a trigger warning is an alert that material about to be read or viewed may contain elements that could lead to an anxious, stressful, or traumatic reaction.  Topics meriting trigger alerts might include misogyny, the death penalty, calorie counts, terrorism, drunk driving, a person’s weight, racism, guns, drones, homophobia, slavery, victim-blaming, abuse, swearing, child abuse, suicide, drug use, medical procedures, corpses, skulls, skeletons, needles, “-isms” of almost any kind, referring to a person as “stupid” or “dumb,” kidnapping, dental trauma, sexual or gender matters, death or dying, insects, snakes, blood, scarification, Nazi paraphernalia, slimy things, or holes.

Even more insidious, trigger alerts have begun appearing on college syllabi, preparing students to encounter subject matter that might cause them to consider possibly disturbing new ideas or perspectives.  Such encounters used to be considered essential components of higher education. Inside Higher Ed noted the text of Oberlin College’s trigger warning for professors teaching Chinua Achebe’s Things Fall Apart: “[The novel] is a triumph of literature that everyone in the world should read. However, it may trigger readers who have experienced racism, colonialism, religious persecution, violence, suicide, and more.” Editorializing aside, this trigger alert should also carry a spoiler alert since it gives away an important incident in the novel. Jay Caspian Kang in The New Yorker observes ruefully that a professor’s trigger alert in a course reading Nabokov’s Lolita ruined that novel’s enchantment for him as a writer.

Campus critics of trigger warnings point out that it is very difficult to craft a policy that covers every possible trigger. Administrators have suggested developing alternative reading lists for courses, a suggestion that pleases few already-overworked professors. Those opposed to trigger warnings believe they limit academic freedom. Those in favor of a trigger policy believe that such warnings remove unspoken anxieties and facilitate more open classroom discussions.

There’s little debate that graphic content and disturbing scenes presented in a classroom should be prefaced with a brief warning or that students should have the opportunity to leave the room or remain silent during discussions as necessary. It is also worth noting that trigger warnings in the realm of sexual misconduct may serve to prevent assault and abuse. But it seems there is some disagreement about what merits a trigger warning and when to apply it. What effect do trigger warnings have on academic freedom? After all, one person’s trigger alert may be another person’s censorship. (The Hollywood ratings system came directly out of increasing censorship in motion picture content following a series of celebrity scandals in the 1920s and 1930s.)

 

Trigger Warning….well, too many to name.

Of course, the potential for satire is ripe here. One blogger wrote that he expects trigger warnings in any discussion of bug infestation or animals in wigs. The New Republic has suggested with a wink that The Onion should come with trigger warnings. Should people who are crabby in the morning sport trigger warnings? What about rude drivers or restaurant diners with poor table manners?

What began as well-intentioned warnings of limited utility is now an intricate system of potential defense against anticipated offense. I’m OK but maybe—trigger warning—I shouldn’t assume that you’re OK. It is as if society were supposed to protect its fragile members from the element of surprise, the unexpected, even the very future. (Trigger Warning: Unknown events about to transpire.) Enthusiastic propagators of trigger warnings (are they trigger happy?) would have us believe they are looking out for our best interests, acting in the interests of community, looking to ensure that compassion rather than Post Traumatic Stress Disorder is the result of any potentially challenging situation or topic.

I made the decision not to watch a very popular HBO series because of its graphic sex scenes and excessive violence to people and animals. Yet, I decided to watch another series containing some of those same disturbing elements because I found that its character development and production values offset the offensive scenes and to some degree justified them. I would not have wanted these decisions made for me by trigger alerts. Nor would I have wanted to have my expectations colored by assumptions about my taste or tolerance.  Which I guess is just to say that I have a low tolerance for people who presume to know what my tolerances are—or even might be.

Trigger Warning:  Nanny state expansion underway.

Leann Davis Alspaugh is the managing editor of The Hedgehog Review.