With respect, I do not understand the comment below about the “complicity” of legal academics in the legal wrongs perpetrated by religious institutions, or any institutions, that they study and think about. I am assuming that the institutions are engaged in legal wrongs in the cases we are now talking about (Notre Dame and Hobby Lobby), which is the assumption from which I’ll proceed for purposes of this comment.
First, what is the meaning of “complicity” in this context? Is it a meaning like the meaning being pressed in the lawsuits—a religious meaning? Is it a meaning derived from criminal law—as in accomplice liability? I am not suggesting that anybody believes that law professors are criminally complicit; probably the statement refers to moral complicity. But that still leaves the problem of understanding the meaning of the word here. In criminal law, complicity generally requires sharing the purpose of the wrongdoer, or perhaps taking a view with the intention that it will enable or encourage the wrongdoer to continue doing wrong. If it is another meaning, what is it? Second, assuming the meaning is something approaching shared purpose, I do not understand how legal academics, by discussing various issues on a listserv or elsewhere and thinking through them, and (so far as I can see) disagreeing with one another, are complicit in the wrongdoing of the subjects that they study. It would be very unusual (and certainly not reflective of the ethos on the criminal law listserv to which I also subscribe) to describe a scholar of criminal law as complicit in the wrongdoing of a criminal defendant by taking positions that are protective of his rights under, e.g., the Fourth Amendment or the Sixth Amendment or a statute, notwithstanding overwhelming evidence of his guilt. Similarly, in evidence, there are all sorts of presumptions and privileges that work to protect people’s rights, sometimes at the expense of other values related to the question of liability or culpability. In other areas of law, legal scholars understand that evidence of guilt or liability is not the only thing that matters, and that there are limits beyond which a civilized society is not prepared to go because to do so would sacrifice other important values. This area should not be different. And law professors, in order to do what they have professional obligations to do (which does not include being "original"), need to be able to talk about and work through positions without the fear of being branded as themselves perpetrators of civil or criminal wrongs whose culpability is derived from the positions that they take with respect to the subjects that they study. Best, Marc From: Paul Horwitz <phorw...@hotmail.com<mailto:phorw...@hotmail.com>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Saturday, February 15, 2014 at 9:43 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Cc: "religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>" <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>, "kurtla...@gmail.com<mailto:kurtla...@gmail.com>" <kurtla...@gmail.com<mailto:kurtla...@gmail.com>> Subject: Re: Notre Dame-- where's the complicit "participation"? Sincerity 1) I was unaware there was such an ethos. It does not seem to be a terribly strong one. 2) Yes, churches, religious institutions, and indeed all other institutions, including law schools, liberal nonprofits, and so on are subject to institutional incentives and should be subject to institutional analysis. That analysis should be neither supportive nor antagonistic. 3) The double negatives in the sentence about taboos were slightly confusing. I take it your view is that scholars ought not buy into taboos of any kind, regardless of whether they support the so-called powerful or the so-called powerless; if so, I agree with you. Whether to protect the powerful or the powerless is an important moral premise on which one might base other activities; it is not a scholarly premise or duty. There is a famous quote that the purpose of journalism is to afflict the comfortable and comfort the afflicted. That statement is wrong about journalism, and certainly would be wrong about scholarship. 4) Personal conduct showing use of contraceptives may conceivably be relevant to questions of sincerity in some cases. It is far from dispositive, especially for purposes of the courts. Sent from my iPad On Feb 15, 2014, at 8:31 AM, hamilto...@aol.com<mailto:hamilto...@aol.com> wrote: Marty raises a critical issue in religion clause scholarship. Why is it that scholars should not "question Notre Dame's sincerity" and should "bend over backward to assume good faith?" I understand politically why legislators do it (though I think it is a gross dereliction of duty to the vulnerable and their obligations to be neutral toward religion); and I understand why Pres Obama abandoned his allegiance to the separation of church and state once he became President, again, it's politics, and a gross dereliction of duty. I also understand that religious entities in the US have done everything in their power to make it taboo to criticize them in the public square, which at one point was extraordinarily successful, but in fact has fallen apart in light of the disclosures of clergy sex abuse, medical neglect, extreme homophobia, and overreaching in recent years. Here is my question---Why is it that there is an ethos on this listserv of supposedly independent-minded, and I know very intelligent, academics to presume sincerity and/or that religious entities have better or more valuable claims than those they burden, which is in fact the tenor of most of the discussions? Sincerity is a part of the doctrine and should be treated as a fact question that is integral to free exercise cases. Does anyone on this listserv actually believe that religious lobbyists, litigators, and leaders never lie to legislators, courts, or the public? This sort of attitude is a category mistake in my view-- it is confusing God or higher powers with the humans that operate on earth. It is unworthy of scholars, whose role is to be questioning and original, not to buy into society's taboos, which are constructed to protect the powerful against the powerless. We, as scholars, are all complicit in the wrongs done by religious organizations to the extent we treat them as super-human and not worthy of close critical scrutiny. Both Hobby Lobby and ND changed their plans, which covered contraception, following the US Conference of Catholic Bishops' national push for "religious liberty" with a focus on going after the ACA and contraception. How can that change in their plans not serve up the question of sincerity front and center? I am deeply sincere and I believe on the high ground in saying that the lawyers in opposition to ND and HL should demand depositions of every official and ask two questions: how many children do you have? do you or have you ever used contraception? Doesn't personal conduct showing use show insincerity about this complicity argument? And why should academics not analyze or mention it? A blind assumption of good faith leads our discussions down paths of inauthenticity. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com<http://sol-reform.com/> [http://sol-reform.com/fb.png]<https://www.facebook.com/professormarciahamilton?fref=ts> [http://www.sol-reform.com/tw.png] <https://twitter.com/marci_hamilton>
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
