December 09, 2004

Faith-based programs

Steven Shiffrin: December 9, 2004

What should the left’s position be on financial aid to religious charitable work (the so-called “faith-based” programs)? The question needs to be divided. Government has long provided financial aid to organizations like Catholic Charities and Lutheran Social Services on the conditions that such organizations must not discriminate on the basis of religion with respect to clients or employees and may not proselytize while providing services. The aid to such organizations has not been trivial. For example, in the early 1990's, 65% of the almost $2 billion Catholic Charities budget came from government contracts. As John J. DiLulio, Jr., observes  “[L]arge national religious nonprofit organizations such as Lutheran Social Services, Catholic Charities, the Salvation Army, and the Jewish Federations have received tens of billions of dollars in government grants.” Government by Proxy: A Faithful Overview, 116 Harv. L. Rev. 1271, 1274 (2003).

Most evangelical churches (be they African-American or Caucasian) have been unwilling to accept the conditions concerning discrimination and proselytizing. To oversimplify somewhat, President Bush’s policy is to drop the conditions (assuming alternative suppliers of aid are available to people who would be denied aid by one church or another),  thus broadening the class of organizational recipients. Bush’s goals are  to end the discriminatory effect of the current policy and  to aid organizations he thinks are effective together with a political eye on the hope of providing some appeal to African-American voters and of rewarding the constituency of white evangelicals.

The Bush policy might or might not be declared illegal by the current Supreme Court. Its possibilities of being upheld increase if the aid comes in the form of vouchers. Regardless of the Court’s view, however, the Bush policy runs counter to many values that underlie the Establishment Clause including: forcing taxpayers to support religious ideologies to which they are opposed, making decisions between and among religions (because some charities might be deemed more worthy than others and partisan considerations might enter into the decisions), and  compromising the integrity of religious organizations including the stifling of religious criticism of the state in order to curry favor. Some of these values are undercut by the current policy, a policy that has disproportionate impact in favor of some religious traditions.

What should the left’s view be? It seems to me that abandoning governmental support for organizations like Catholic Charities would be enormously damaging to the poor. In other words, in the trade off between Establishment Clause values and helping the poor, I would not further aggravate the disgraceful way in which this nation treats the poor. What about dropping the conditions and permitting the subsidizing of more religious organizations? From the perspective of poverty policy, such a move might create an alliance of left and right that would  provide greater support for the poor. The poor could certainly use greater support and a stronger constituency. On the other hand, in addition to the serious Establishment Clause worries, one might fairly be concerned that the human face of church aid might be transformed into bureaucracies if increased funds caused them to expand; the case for their performance in dispensing aid has not been tested by audits (and subjecting them to audits could compromise Establishment Clause values). Finally, the social science literature and the experience with the House of Representatives in the last four years gives rise to concerns that the distribution of aid through states would discriminate against Black Evangelicals. I do not mean to endorse the Bush policy, but I believe the left should give it more serious consideration than I believe it has to date. Waiting for the day in which help for the poor comes in the form of revitalized government welfare programs could be akin to waiting for Godot.

January 03, 2005

Corporate Welfare

Steven Shiffrin: January 3, 2005

Almost ten years ago, the Boston Globe estimated that $150 billion in the form of subsidies and tax breaks was funneled to American companies. The $150 billion figure (presumably much larger now) was then greater than the annual deficit of $130 billion (definitely much larger now). It was greater than the program aiding families with dependent children, student aid, housing, food and nutrition, and all direct public assistance taken together (excluding Social Security and medical care). Politicians from right (Pat Buchanan) to left (Robert Reich) have condemned “corporate welfare.” The theme that we should take back America from the dominant grip of corporate greed was a pervasive theme of the progressive movement.

If the left wants to appeal to the right without abandoning its integrity, it should campaign on behalf of core democratic values, values that make the voice of the people more important than corporate contributions. It is more possible to do this now than ever before. For many years, corporate contributions (through PACs or otherwise) were necessary to finance campaigns. The internet has now made it possible to gather vast sums of money while circumventing the corporate establishment. I am not suggesting that the left press for an anti-business agenda. (Many pro-business measures are consistent with a progressive ideal, and corporate contributions consistent with that ideal are entirely acceptable). I am suggesting, I am not the first, that taking back America from the grip of corporate power is a powerful theme that is attractive not only to the left, but also to right-leaning, gun-owning patriotic populists all over the country.


March 04, 2005

Universities, Religion, and the Secular Left

Steven Shiffrin: March 4, 2005

One of the premises leading to the creation of this site, as I understand it, is that there is insufficient communication between the left and the right. In important ways, the left does not understand the right and the left does not understand the right. My assumption in this post is that the secular left does not understand the religious right or the religious left. For example, I doubt that many on the secular left could speak intelligently about the difference between fundamentalists and evangelicals, describe the heterogeneity of evangelicals, appreciate the extent to which the left is populated by those who proceed from a religious perspective, and, especially important, I doubt that most of the secular left understands the character of the religious arguments within and between religious traditions that have political ramifications. Without understanding the arguments, secular leftists cannot participate in effective ways.

To be sure, some are philosophically committed to the view that religion with limited exceptions should play no role in “public reason,” even though “reasonable” religious perspectives are admissible as comprehensive views that can be part of an overlapping consensus in support of a just society. This world of “public reason” without religious arguments does not now and never will exist. Those who hold to the “public reason” view need to explain how their theory applies to the world of the second best. Even if it made sense to say in a just society that a Millian would not attack a Kantian worldview in the public sphere, does it make sense to say that citizens cannot attack the theology of the religious right when the religious right has introduced religious arguments in the public sphere? Leaving aside the “public reason” constraints, there are no such constraints theorized in civil society, so the relative ignorance of the secular left seems problematic from the perspective of liberal education and pragmatic politics.

This leads to my question. Leaving aside the quality of religious education in religious colleges and universities, to what extent are secular universities responsible for the lack of knowledge of the secular left?

Take Cornell University where I teach. There is a Christian chapel (a more ecumenical focus would make more sense on this multicultural religiously diverse campus), many campus ministers, and a religious studies program (primarily a social science program). But, so far as I am aware, there is not a single theologian on the tenure or tenure track faculty. I wish that Cornell was unique in this respect, but its treatment of theology appears (with numerous exceptions) to be widespread in American universities. See George Marsden, The Soul of the American University. (My impression – though it is nothing more than an impression - is that even those universities with divinity schools, e.g., Harvard, Yale, Chicago, have not integrated them into undergraduate life).

My contention is that this is a prescription for inadequate education on issues of moral and political thought. University dialogue and debate on ethical and political issues in and out of classrooms should include faculty members who proceed from theistic and non-theistic perspectives. For example, theologians have thought deeply about issues of war and peace. Some are pacifists; other believe in the just war doctrine (with varying views about the conditions for a just war). In the Christian tradition, such theologians would point to scripture, but scripture is only the beginning of the inquiry for most of them. Moreover, to the extent, the debate is confined to scripture, it would be helpful for the secular left (or any informed citizen) to understand the nature of the debate. Obviously, the war and peace example could be multiplied across a broad range of issues. It is hard to imagine why university dialogue would not be enhanced by discussion from theistic and non-theistic perspectives.

Some would say, however, that religious thought is superstitious nonsense and does not belong on a university campus. It seems to me that there should be room in a university for this position to be advanced in a robust way. But it would be quite a different thing for a university to take such a position. In the interests of academic freedom, secular universities ordinarily (there are exceptions) do not take positions on controversial questions. In keeping with this, a secular university should not take theological or anti-theological positions. A secular university should not take positions about what God has to say about a subject or whether there is a God that has something to say. But to say that theology is superstition and that theologians should be excluded from a faculty commits the university to an anti-theological position. To be sure, universities can exclude astrology on the ground that it is insufficiently scientific. This is not controversial. Excluding religion, however, exhibits blindness not only to the religious character of the culture, but also to the religious demographics of a university faculty. I am guessing here that the combination of believers and agnostics on a university faculty outnumbers the atheists, and many of the atheists would have the intellectual humility to think they might be wrong or that theologians might have something useful to say, or that students might benefit from knowing how they think.

Some might worry, however, that it violates the Establishment Clause for federally funded universities to hire theologians, but that is surely wrong. If the government funded the theologians, that would be a problem. But government’s funding of math and science does not preclude a university from hiring theologians in a program of Ethics and Public Life, or Government, or Theology. At least, since the Tilton case, this has been established law.

What accounts for the exclusion of theologians then? Perhaps a combination of the belief in the triumph of science over religion (where this stands after the postmodern critique will not detain us), general antireligious sentiments, and arguments clothed with Establishment Clause overtones (with worries about how many and which kinds of theologians). The result of these and other factors in my opinion is that universities fail in an important part of their educational mission.


November 24, 2005

Bollinger, Academic Freedom, and Tolerance

Steven Shiffrin: November 24, 2005

Earlier this year President Lee Bollinger of Columbia University gave the Cardozo Lecture to the Association of the Bar of the City of New York. The subject was academic freedom. Bollinger maintained that academic freedom included academic responsibilities. One of those responsibilities, he maintained, was that every professor was to cover the full range of the complexity of the subject in every course. Why?

 According to Bollinger, the goal of university education is to produce tolerant and non-authoritarian citizens, citizens who have “the imaginative range and the mental courage to take in, to explore, the full complexity of the subject. To set aside one's pre-existing beliefs, to hold simultaneously in one's mind multiple angles of seeing things, to actually allow yourself seemingly to believe another view as you consider it. . . .”

 It strikes me that this perspective on academic freedom is overly narrow. We can all agree that professor have responsibilities. They must teach within the confines of the subject they are teaching. They must respect students whose views are different than those of the professor. In many courses they should be expected to explore, so far as possible, “the full range of the complexity of the subject.” (Bollinger, I believe is not so naïve as to believe that the full range can really be explored in every course. What he means to counter is one-sided or partisan teaching). But, in requiring this of every course, Bollinger goes too far. Is it wrong for a teacher in a seminar on law and economics to explore the subject without having a unit on challenges to law and economics? For a teacher of feminist thought not to have a unit with readings from fundamentalist patriarchal thinkers? Suppose I teach a seminar on First Amendment Theory and decide to focus on adherents to one or two theories in depth because I think exploring subjects in depth is better than seeing the general map of first amendment theory or because I think these two theories are best and want to compare them. Is this professionally irresponsible?

 It seems to me that Bollinger goes wrong in two ways. First, he underestimates the extent to which a mission of the university in many courses is to explore truth wherever it may lead. This may lead to teaching that some might call partisan. So long as the “partisan” teacher is fair to those of different views, I believe the cause of truth is advanced in a university in which such teaching is respected and defended.

The other problem stems from an overly narrow conception of the first amendment and the makeup of a democratic citizen. Bollinger has written an excellent book in which he highlights the role of the first amendment in encouraging tolerant citizens. I, for one, doubt that the most important feature of the first amendment is nurturing character traits (though I think it plays a role). But I believe that Columbia Law Professor Vincent Blasi presents a richer view of the kind of character that the first amendment might be out to cultivate. Blasi speaks in favor of the claim that a “culture that prizes and protects expressive liberty nurtures in its members certain character traits such as inquisitiveness, independence of judgment, distrust of authority, willingness to take initiative, perseverance, and the courage to confront evil. Such character traits are valuable, so the argument goes, not for their intrinsic virtue but for their instrumental contribution to collective well-being, social as well as political.” Vincent Blasi, The First Amendment and Character, 46 UCLA L.Rev. 1567, 1569 (1999). I believe that what Blasi says of a first amendment culture is true of a university culture and that Bollinger proposal of a “fairness doctrine” for the subject matter of every course is unduly restrictive. We need more than tolerant citizens; we need engaged citizens. Conceding that Bollinger’s restrictions are appropriate in many introductory courses, a first amendment culture is more likely to produce engaged students and citizens than Bollinger’s more restricted culture

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February 16, 2006

Academic Freedom, Catholic Education, and the Vagina Monologues

Steven Shiffrin: February 16, 2006

Freedom is freedom for truth. Error has no rights. This was the perspective of the Catholic Church for many centuries. It was used to support censorship and persecution in many countries. The same perspective was employed by Protestant countries for the same purposes and by non-religious dictatorships. The freedom was the same; the truth was different.

At least with respect to the actions of government, Vatican II changed the perspective of the Church. Vatican II respects the dignity of the individual and his or her freedom to make religious choices. It respects the right of individuals to choose error, but hopes to lead them toward its conception of truth. Liberal Catholics believe that individuals should enjoy the same freedom with respect to Church teaching. They should, for example, have been free to maintain that religious freedom was demanded by appropriate conceptions of human dignity when Church teaching was to the contrary. Traditional Catholics believe that the freedom publicly to oppose Vatican teachings by Catholics should be restricted, and that freedom of conscience within the Church is freedom for truth.

The question of what it should mean to be a Catholic university gets much discussion in Catholic circles. Among other things, I think such universities should be able to assure a dominant presence of Catholic faculty in relevant subject areas. But I do not think it should be the goal of the administration of such universities to eliminate all error from their campuses, nor do I believe any administration is committed to doing so. Nonetheless, I do think the Church has a bad record in this regard. Charles Curran should be teaching at a Catholic university; so should Hans Kung. The point is not that Curran and Kung were right (on most points I think they are); the point is that their perspectives need to be discussed and debated in a Catholic university. That debate will be sharper if the best advocates of their position are in Catholic universities.

I have two points to make about the Vagina Monologues which has most prominently been restricted at Notre Dame. First, if you want to encourage students and members of the general public to see the Vagina Monologues, tell students they can not have the show on campus or otherwise limit the ability to see the show. Students and other citizens who would never have thought to see such a production will rush to see it.

But, generously understood, I assume the real point of opposing the Vagina Monologues was to send the message that a particular university is a Catholic university. I think the better way to do that is education. The better way is to publicly discuss the strengths and weaknesses of the Vagina Monologues from a Catholic perspective. A public image of censorial tendencies is not good for Catholic education, and censorial Catholic education is not good education.

Steve Shiffrin
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May 06, 2006

Government and Religion

Steven Shiffrin: May 6, 2006

On Prawfsblog, Rick Garnett takes the view that: “I certainly share Marty [Lederman]’s (and
Madison's) concern about religious faith being reduced to a convenient means for achieving the government's ‘secular’ ends.  That said, I'm not sure why it should be unconstitutional -- or, in any event, why it would be ‘profoundly disturbing’ -- for the government, as a general matter, to take, and act on (in non-coercive ways, of course, and consistent with the freedom of conscience), the view that ‘religious transformation [and]  faith’ are good (when freely embraced).” 

It is not clear to me that an announcement by government that religious faith is good without any accompanying action is unconstitutional though I think we would have a better Constitution if it were.

I think it might well be constitutional because it is constitutional for the government to put “In God We Trust on the Coins,” to say “God Save the United States and This Honorable Court,” and to issue a Pledge of Allegiance “Under God.” I think these practices affirm religion over non-religion and monotheism over non-monotheism. And I think that claims that the motto, the prayer, and the Pledge are non-religious lack integrity. I argue this in The Pluralistic Foundations of the Religion Clauses, 90 Cornell L.Rev. 95 (2004). Michael Perry also argues this in a forthcoming article in
St.Thomas and I believe he has also expressed the view in print previously as well.

I think a government statement to the effect that religion is good might cross a line in it that might be encouraging religion, and that is unconstitutional. I certainly do not think that government is entitled under the Establishment Clause to proselytize (thus intelligent design can not be taught in the schools) and it is not entitled to say what God has to say about any subject (it should be inappropriate for government to post versions of the Ten Commandments).

Whatever its constitutionality, I would find it disturbing for government to announce that religious faith is good, let alone to act on it. First, I think government neutrality on this subject is more respectful of citizens who disagree. I do not believe that a person’s religion or lack of it should have any bearing on their relationship to the state. Statements like these including “In God We Trust” mark out two classes of citizens: those who do not trust in God are not part of the “We.” They are marked as outsiders. Just as important, I do not trust government to help religion. I believe that close ties with government have hurt the Church in Europe. The Church made the horrible mistake of thinking that close ties with monarchs, Vichy France, Salazar, Franco, Mussolini, and the like would be good for the Church. This not only interfered with the kind of witnessing that was called for. It put the Church on the wrong side of history in the eyes of millions of Europeans.

Close ties with government risk alliances with corruption and dependency. I do not maintain that phrases like In God We Trust have hurt religion much (though it has robbed the phrase of spirituality, and has married religion with money at the same time it asserts a theological proposition), but it is hard for me to imagine that they help. It may be that demagogic politicians might try to curry favor by saying that In God We Trust needs to be put on the currency or to forge alliances with merchants in highlighting Christmas – a special form of blasphemy. But I believe religion can get along quite well (I am sure Rick does too) without government announcements that religious faith is good.

There is a special irony here. Religious conservatives ordinarily are suspicious of government in a broad swath of areas, but they seem comfortable with government promoting religion (I have no basis to assume that Rick is part of this irony). I am genuinely curious as to why.