Butterflies and me

Do you, I wonder, remember the British comedy Butterflies? It starred Wendy Craig and Geoffrey Palmer, as Ria and Ben, a stay-at-hone mother and her dentist husband, and focused rather daringly for the time on the discontents of marriage for a woman who found the traditional roles of wife and mother stifling, and unsatisfying. And, while she tried gamely and persistently, Ria just wasn't domestic. Moreover, Ria was persistently courted by a rich younger man who was on her wavelength in a way Ben often failed to be, so the tension in the series was always would (and should) Ria junk her marriage, run off with Leonard, or at least sleep with hum? Ria's loyalty, her conventionality, and her genuine if bemused and frustrated love for Ben and her sons, held her back--if only just--but as she paced around the local church to Albinoni's "Adagio," viewers wondered if she would take the leap. Ben's sarcasm sometimes pushed her toward the jump, and as much of the humor came from Ben's snidery directed at Ria's cooking, at their two sons Adam and Russell and at his own foibles (especially in later episodes), anything was possible.

Over the years, the show subtly shifted its focus; the first few seasons took Ria's perspective almost entirely; in the later years, as Ben began to suspect that all was not well in their marriage, he sometimes became the viewpoint character, and tried to grapple with Ria's frustrations, or persuade himself that all was well, or share with her his own discontents in a life as a respectable dentist. Ria's perspective always anchored the show, but I loved the simple fact that in "Butterflies" there were no villains. Ria loved Ben, but was drawn to Leonard's appreciation of her, and his need. Ben loved Ria, but was perplexed at her unhappiness; he dealt with it by living life as a vale of irony. The boys loved their parents, but were young and it was the late 70s. They had more pressing concerns. It was real, and, in the best possible way, feminist. By which I mean it drew attention to the injustices embedded in culture that had constrained Ria's growth and choices, and made clear that Ben was complicit in her limitation without even knowing he was. Even Leonard often adored not Ria, but a fantasy figure--although, to be fair, as portrayed by Bruce Montague, there was a lot more to Leonard than that.

In one way, though--and this is the brilliance of Carla Lane's writing--Ben was a very good match for Ria. His sneaky concern for her well-being, his ability to joke her out of her more melodramatic solipsistic moments, and his deep love for this woman he doesn't understand earn our sympathy, and Palmer plays the role beautifully.

Ultimately, it's Wendy Craig's show, though--fetching, charming, tragic and overwrought by turns, she isn't afraid of Ria's ridiculous moments, or of her suburban sub-tragedy. She's the heart of this most unusual comedy.

Here's the Children in Need abbreviated Reunion episode, for longtime fans, such as myself:

George Herbert

Of course, after my previous, politico-legal post, I remembered today is George Herbert's day. Let's not end the day of so beautiful a poet, and so admirable a priest, on a note of reproof. Rather, here is one of Herbert's poems, about the nature of--well, wait a minute. Let the poet make his own point:

Prayer the church's banquet, angel's age,
God's breath in man returning to his birth,
The soul in paraphrase, heart in pilgrimage,
The Christian plummet sounding heav'n and earth
Engine against th' Almighty, sinner's tow'r,
Reversed thunder, Christ-side-piercing spear,
The six-days world transposing in an hour,
A kind of tune, which all things hear and fear;
Softness, and peace, and joy, and love, and bliss,
Exalted manna, gladness of the best,
Heaven in ordinary, man well drest,
The milky way, the bird of Paradise,
Church-bells beyond the stars heard, the soul's blood,
The land of spices; something understood.

For more about the spirituality of this poem, see Christopher Bryant's unpacking.

Pounding the Table

This article is stunning either in its disingenuousness or its ignorance. Money quote:

So far in American history, our government has respected the freedom of individual conscience and of institutional integrity for all the many religious groups that shape our society. The government has not compelled them to perform or pay for what their faith tells them is immoral. That’s what we’ve meant by freedom of religion. That’s what we had believed was protected by the U.S. Constitution.

That has, simply, never been the law. As the Supreme Court stated as long ago as 1879:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

(Reynolds v. U.S., 98 U.S. 145. 166 (1879)).

For a little under 30 years, a handful of decisions carved out an exception to this general rule for actual religious practices which contravened generally applicable statutes, but which either involved parental control of their children's education or statutes which made exceptions for majority religions but not minority religions. These cases, which did not involve taxes or required insurance, were held not to apply to evenhandedly applied statutes that did not involve intrusion into the homes of religious believers by a majority led by Antonin Scalia in Employment Div. v. Smith, 494 U.S. 872 (1990). As Justice Scalia wrote:

They assert, in other words, that "prohibiting the free exercise [of religion]" includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as "prohibiting the free exercise [of religion]" by those citizens who believe support of organized government to be sinful, than it is to regard the same tax as "abridging the freedom . . . of the press" of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. Our decisions reveal that the latter reading is the correct one. We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.

494 U.S. at 878-879. See also Hernandez v. Commissioner, 490 U.S. 680 (1989) (rejecting free exercise challenge to payment of income taxes alleged to make religious activities more difficult).

The Cardinal's analysis on the constitutional point is, simply, predicated on what may most charitably be called an error, but an error that is obvious to anyone who has taken more than a few minutes to review the jurisprudence; he has taken a very narrow "conscience exemption" applicable to very specific and personal decisions and tried to turn it into a general exemption from laws of which he disapproves.

Now They Like the Warren Court...

So, I think I finally have a clue as to why I'm lacking in sympathy for the conservatives attacking the Obama Administration for its proposed rule regarding contraception coverage on religious freedom grounds. It is, as usual, the hypocrisy that rubs the wrong way. Let me explain. In 1879, the Supreme Court decided Reynolds v. United States, in which it declined to exempt Mormons from the generally applicable federal criminal statutes prohibiting bigamy in territories of the United States. As the Court explained:

In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? 167*167 To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

The Court reaffirmed the rule of Reynolds in Davis v. Beason. The general principle of Reynolds and Davis remained good law, until, in 1963, Justice William J. Brennan writing for a 7-2 majority of the Warren Court, in Sherbert v. Verner, found that a state unemployment compensation statute was construed by the state courts as disqualifying workers from receiving benefits if they refused to work on Saturdays, the Sabbath of her faith. The Court found that by advantaging mainline Christian faiths over other religions, and found that the state must prove that "some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant's First Amendment right." The Court reaffirmed Reynolds, based on the criminal nature of the proscription (and thus the strong social interest in prevented bigamy vis a vis the general populace), and distinguished it (and Davis) from the case at hand by the fact that the exemption was effectively presumed and thus available to majority sabbath servers. In the Burger Court Era, the Court revisited the compelling state interest test in the religion context in Wisconsin v. Yoder, applying its principle to allow the Amish to homeschool their children.

However, in 1992, in Employment Division v. Smith, the Court, in an opinion by Justice Scalia, effectively reduced Sherbert and its progeny to historical artifacts, finding that "[t[he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." In particular, the Court noted, the Sherbert rule had never been applied to taxes or other financial assessments. The Court distinguished Sherbert and Yoder,on the grounds that:

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 310 U.S. at 304, 310 U. S. 307 (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania, 319 U. S. 105 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick, 321 U. S. 573 (1944) (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U. S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U. S. 205 (1972) (invalidating compulsory school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school).

In short, Justice Scalia, joined by Chief Justice Rehnquist and Justices White, Stevens and Kennedy, effectively eliminated a Warren Court precedent which had created (according to the myriad decisions cited by the Court in Smith ) a limited exemption from neutral generally applicable laws for small-scale, substantial infringements on religious expression, such as the sacramental use of peyote involved in that case. (Marci Hamilton, in God vs the Gavel documents the narrow place Sherbert and its progeny had in the jurisprudence, so I'm not relying on Scalia alone here.)

So, here's the rub: The Right is complaining that Barack Obama is not following the effectively overruled Warren Court precedent, but is instead contouring his administration's policies to the analysis of Antonin Scalia and the conservative Rehnquist Court.

(As to RFRA, that's another post for another day; in very short, I don't believe it's violated because of the weight of the interest in standardizing health care, the accommodations made to ecclesial bodies and affiliated institutions prevent a "substantial" burden on religion, in view of the affiliated entities' role in interstate commerce and provision of services to the general public and employment of those beyond sectarian confines.)

(Oh, and Hamilton's argument for a narrow reading of Sherbert is, in my opinion, convincing, or religious exemptions could derail neutral, generally applicable law almost in toto.)

Everybody Knows

Nearly a week later, and no post. I've been busy on a new article on the prohibition against usury, economic justice and theories of interpretation. Apologies for the silence. As an amend, I offer:



Actually, this belongs in the article, I suspect.

Pet Sounds

My wife and I are both occasional commenters on Balloon Juice. So when I heard from her that a colleague in her booming cat colony at the Brooklyn Navy Yard had found a kitten with an inured eye (which could not be saved) who needed a home, I thought of Balloon Juice's history of cat and dog rescue support. I sent in the pictures I had of the cat, named Sanders (as the kitten had, rather inexplicably, been dubbed), the ones up top. I asked regular front pager Anne Laurie to put out a bleg for help, and she generously did so. As the comments reflect, no fewer that three "Juicers" offered to take Sanders 9although some thought Jack Sparrow would be a more appropriate name). La Caterina's colleague met with a couple and, I am delighted to say, Sanders is going to fine new home this coming Saturday, after his rescuer has a little more time to socialize him--he's sweet, but shy.

Just this once, everybody lives.

The Outspoken Dean Inge: A Short Note on W.R. Inge, Charles Gore, and John Henry Newman

I have long been an admirer of the scholar, priest and controversialist W.R. Inge. (An introduction to his life and thought is here.) But reading his Outspoken Essays is a very mixed bag. The worst parts are dated opinion pieces, often surprising in the extent to which Inge got caught up in the passing passions of his day, often to the detriment of his charity (and this from the man who said that "[h]e who marries the spirit of the age will soon find himself a widower").

But Inge at his caustic, polemic best can be irresistible. So, for example, on the theological commitments of Cardinal John Henry Newman to faith wholly independent of reason, which Inge describes as "avowed obscurantism", Inge writes that "[w]e can imagine nothing more calculated to drive a young and ingenuous mind into flippant scepticism than a course of Newman's sermons. The reductio ad absurdum of his arguments is not left to the reader to make; it is innocently provided by the preacher." Inge, who described Newman (in explaining his attack on Charles Kingsley, condemned by some in theological circles as "horribly unchristian" despite provocation) as a "master of fence", shows himself no mean hand with the blade himself. But there is much more to Inge's essay on Newman than sport with a notable (albeit now silenced) adversary; Inge is interested in why an able, devout, and (a fact edited out of the record by some Newman aficionados)intellectually quite aggressive man would accept an obedience that effectively silenced him for decades that could have been the most productive of his life. He doesn't reach an answer, of course. As shown by no fewer than three of the essays here, Inge finds Anglo-Catholicism bewildering; as he describes it in the essay on Newman:

Anglo-Catholicism has its theoretical basis in a definition of Catholicity which is repudiated by all other Catholics; its traditions are largely legendary. But it is an eclectic system well suited to the English character, and the distorted view of history which Newman bequeathed to the party has enabled it to borrow much that is good from different sides, without any sense of inconsistency. The idea of a Divine society has been and is the inspiration of thousands of ardent workers in the Anglican Church. It lifted the religion of many Englishmen from the somewhat gross and bourgeois condition in which the movement found it, to a pure and unworldly idealism. And, unlike most other religious revivals, especially in this country, it has remained remarkably free from unhealthy emotionalism and hysterics. The social atmosphere of Oxford, always alien to mawkish sentiment, penetrated the whole movement, and maintained in it for many years a certain sanity and dignity which, while they doubtless prevented it from spreading widely in the middle class, made the Tractarians respected by men of taste and education. http://www.blogger.com/img/blank.gifBut these influences could not be permanent. The goodwill of the Tractarian firm (if we may so express it) has now been acquired by men with very different aims and methods. The ablest members of the party are plunging violently into social politics, while the rank and file in increasing numbers are fluttering round the Roman candle, into which many of them must ultimately fall.

What a mix of everything that is invigorating and vexing in Inge! The casual wit (quite like the reference to "the Roman candle"), equally casual elitism, but the willingness to ascribe virtues to a movement fundamentally alien to him, and one which, ultimately, repelled him.
On the subject of Charles Gore (another figure for whom I have great affection), Inge is by turns scathing and admiring. I had realized from passing references in Gore's writings that he and Inge were not, shall we say, compadres, but had not realized the gulf between them was so wide until I read Inge's essay on Gore, in which he attacks Gore's ecclesiology, his belief in the New Testament as history, and his work as a church reformer. As to the latter, Inge concludes that,

the Bishop's policy of reconstructing the Church of England as a self-governing body, professing definitely Catholic principles and enjoining Catholic practices, seems to us an impossible one. The chief gainer by it would be the Church of Rome, which would gather in the most consistent and energetic of the Anglo-Catholics, who would be dissatisfied at the contrast between the pretensions of their own Church and its isolated position. The non-episcopal bodies would also gain numerous recruits from among the ruins of the Evangelical and Liberal parties in the Church

.After some kind words for Gore's "earnest sympathy with the aspirations of the working class to improve their material condition" and Gore's keen awareness of "the apparent discrepancy between the teachings of Christ about wealth and the principles which His professed disciples wholly follow and in part avow." But then, after all this, he changes tone most surprisingly:

When he handles what may be called applied Christianity, he does so in a manner which makes us rejoice at the popularity of his books. The little commentaries on the Sermon on the Mount, and on the Epistles to the Romans and Ephesians, are admirable. They are simple, practical, and profound.

Rather than encapsulate the books, he finds a stirring, lengthy passage explaining the Sermon on the Mount, and prints it verbatim. In the end, Inge's hostility to Gore's effort to create a vibrant Anglo-Catholicism for the then-new century could not smother his admiration for the pastoral efforts of the bishop working overtime to teach that Christianity was not merely a creed, or a set of historical propositions, but was--and is--ultimately a way of life designed to bring life in abundance to those who follow the Way.

Been a long, tough week...

Let's close it out right:

The Ninth Circuit Sends Prop 8 to the Ninth Circle

The Ninth Circuit's decision today in Perry v. Brown strikes me as a well-crafted and crafty opinion, one which is designed to box in swing justice Anthony Kennedy by employing his framework in Romer v. Evans to find the California constitutional amendment by referendum to be invalid for the same reason as the constitutional amendment, also adopted by referendum, in Colorado which "prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians." In Romer, the Court found that such an enactment, which had the effect of "withdraws[ing] from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies," violated the federal Constitution, by effectively disallowing gays and lesbians the opportunity to effect legislative change by persuasion, and that it

has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

In Perry, the panel used this analysis to devastating effect. It did so through several rhetorical steps.

First, the Court establishes that California had by statute defined domestic partnership in such a way as to afford gay and lesbian couples who availed themselves of that status essentially all of the state-provided benefits of civil marriage.

Second, the Court noted that it was bound to accept as the meaning of the California Constitution prior to its amendment by Proposition 8 the meaning authoritatively read from it by the California Supreme Court in In re Marriage Cases (2008), that it contained a fundamental right to marriage which could not be denied to gay and lesbian couples absent a compelling state interest. The Ninth Circuit followed here the doctrine that the state's highest court is the ultimate arbiter of state law, a doctrine so well established that a federal court cannot hear a case in which a federal claim is presented if the decision is supported by independent and adequate state grounds. (Notably, one of the gravest flaws in Bush v. Gore is that it defied this rule, ignoring precedent dating to 1874, arrogating to itself the prerogative of defining state law contrary to the state's highest court, as explained here by Professor Erwin Chemerinsky; a gallant, but to my mind futile, defense of the decision by my old law professor Henry Monaghan is here).

Third, the Ninth Circuit credibly found that it was faced with a change by referendum that had no practical effect on the legally enforceable rights of gay or lesbian couples; rather it changed one thing only:

All that Proposition 8 accomplished was to take away from same sex-couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage. . . Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.

As such, the constitutional referendum served no legitimate state purpose; the interests asserted by the proponents such as encouraging procreation (!) were quite literally unaffected. Only the status and human dignity were of gay and lesbian couples were effected--adversely--and the utter failure of any rational legitimate basis to justify the initiative left only one explanation: animus. And, under Romer, such a popular enactment cannot stand. QED.

Assuming, of course, that Justice Kennedy is consistent and stands by his opinion in Romer. Still, Judge Reinhardt has made it extremely difficult for Kennedy. Which, in view of the current composition of the Court, seems to me the one hope for a just outcome here, that Kennedy will not reverse himself.

Whose Conscience? Whose Choice?

When the Obama Administration announced that it would not broaden the religious exemption permitting houses of worship to decline to cover birth control for employees, the reaction was predictable. Kaiser Health News rounds up the protests and frankly sometimes overheated responses.

The problem with the responses is, it seems to me, the fact that the critics claiming that the rule is antithetical to religious freedom, is that the institutions affected by it are those which serve the general public and employ many non-believers. A story in Monday's New York Times made the point vividly, telling stories of the impact the denial of coverage can have on students or employees of Catholic institutions:

One recent Georgetown law graduate, who asked not to be identified for reasons of medical privacy, said she had polycystic ovary syndrome, a condition for which her doctor prescribed birth control pills. She is gay and had no other reason to take the pills. Georgetown does not cover birth control for students, so she made sure her doctor noted the diagnosis on her prescription. Even so, coverage was denied several times. She finally gave up and paid out of pocket, more than $100 a month. After a few months she could no longer afford the pills. Within months she developed a large ovarian cyst that had to be removed surgically — along with her ovary.

Many Catholic institutions have striven to transcend sectarian identity, and employ and serve non-Catholics--indeed non-Christians. For them to participate in a secular marketplace in a manner largely indistinguishable from secular enterprises, but to insist that it must be free to adhere to its teachings vis-a-vis as a religious body raises a difficult, not a simple question. The religious liberty interest is attenuated by that decision to enter the stream of commerce not as a religious entity but as a general provider to persons of all or no faith. (Indeed, as the Times article points out, New York State law requires these institutions to cover prescribed birth control, an obligation which the institutions end-run by simply not prescribing them).
The Church's interests are not illusory, but there is here an element of forcing its own conscience onto those who are affiliated with it not religiously, but in a secular manner. All in all, the case for the broader exemption is not, to my mind, legally compelling. Similar state law requirements have been routinely upheld against religious freedom claims at the state court level, with the U.S. Supreme Court denying review.