Tag Archives: Supreme Court

What Is Innocence Worth?

lorish innocence FLAT

In its recent Nelson v. Colorado decision, the Supreme Court affirmed what might have seemed to require no formal affirmation—namely, that a person whose criminal conviction is overturned on appeal is entitled to the return of any fees, court costs, or restitution paid to the state as a result of the conviction. Previously, the state of Colorado required an exonerated defendant to file a separate civil suit and prove actual innocence by clear and convincing evidence before funds would be repaid. Having a conviction overturned on a mere legal technicality would not suffice for financial recovery. The central question in the case—which was decided six to one in favor of the petitioners, with Justice Clarence Thomas dissenting—concerned due process.

While it was notable that the Supreme Court took up such a seemingly self-evident case, the Court did not address the question of compensation for periods of wrongful incarceration. Justice Ginsburg, writing for the majority, explained that the “[petitioners] seek restoration of funds they paid to the State, not compensation for temporary deprivation of those funds. Petitioners seek only their money back, not interest on those funds for the period the funds were in the State’s custody.” Justice Ginsburg continued: “Just as the restoration of liberty on reversal of a conviction is not compensation, neither is the return of money taken by the State on account of the conviction.” She made it clear what compensation is and what it is not: While compensation may be the return of something wrongfully taken, it is not necessarily compensation to be released from prison in which one was held for no lawful reason in the first place. Compensation is something more—an award for loss, suffering, or an injury. Continue reading

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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.

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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.

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Happy Birthday, Brown v. Board of Education!

save brown build civil rights

(Above: Poster used in the April 1, 2003, Civil Rights March on Washington; Library of Congress)

May 17, 2014, marks the sixtieth anniversary of the U.S. Supreme Court’s landmark ruling, Brown v. Board of Education, and I only wish the occasion was as happy, in an unqualified way, as the exuberant headline above sounds.

Certainly, there are still reasons to rejoice.  One of the most powerful bulwarks of Jim Crow segregation began to fall that day in 1954, when the high court justices unanimously overruled the “separate but equal” doctrine encased in the 1896 Plessy v. Ferguson decision. President Barack Obama is surely justified in his proclamation that Brown “shifted the legal and moral compass of the Nation.”

Nevertheless—and here the other shoe must drop—no longer separate still falls abysmally short of accomplishing the other, equally important goal of the ruling.  As I wrote ten years ago (in US News & World Report, March 22, 2004) in the run-up to the fiftieth anniversary, the unfinished business of Brown remained unfinished:

 But the great tragedy of Brown, many commentators agree, is that its original emphasis on racial integration as a means toward equal education somehow shifted toward an emphasis on integration as the end itself. Lost in the shuffle of subsequent rulings and interpretations was the other desired result: educational equality. Things could have been otherwise, argues Yale legal scholar Jack Balkin. After all, in Brown, Chief Justice Earl Warren wrote that education was “a right which must be made available to all on equal terms.” And in Bolling v. Sharpe, which desegregated Washington, D.C., schools concurrently with the Brown decision, he almost stipulated that education itself was a fundamental constitutional right. “It would have changed the way people talked about Brown,” Balkin says. “If you can say what is really at stake is equality of education, you can talk about whether you are creating equal opportunity.”

Without such clarity, subsequent decisions reached by courts more conservative than Warren’s produced much narrower interpretations of Brown. In San Antonio Independent School District v. Rodriquez (1973), the majority concluded that the state had no obligation to equalize funding for an urban school district whose tax base was considerably lower than that of nearby suburban districts. The 14th Amendment “does not require absolute equality or precisely equal advantages,” the majority argued, adding that education was “not a fundamental interest” under the Constitution.

Similarly, Milliken v. Bradley (1974) overturned a federal district court ruling that found integration in greater metropolitan Detroit could be achieved by busing children from the city school district to suburban ones. Noting that the suburban districts had not themselves practiced discrimination, the Supreme Court determined that the remedy was inappropriate. Foes of affirmative action, sometimes resorting to similar logic, have also used Brown’s implicit embrace of colorblindness to argue against racial preferences in admission

No one needs to be told that law is an imperfect instrument for redressing social ills and injustices. Laws can even be turned against what might seem to have been their original intent—which is only to say that laws seldom rise above the times that interpret them.

And that may be the saddest comment on the times that surround this anniversary of the landmark ruling: that there is now so little public passion, and perhaps even less political will, to provide the kind of equal education that is the true foundation of equal opportunity.

So, yes, Happy Birthday, Brown!  Let’s acknowledge the good.  But may the next anniversary gives us even greater cause for celebration.

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