Religious freedom for whom?

The Bill of Rights in the U.S. Constitution begins with religious freedom: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... (Of course, the primacy of these phrases is due to the first two amendments proposed by Congress failing of ratification in the state legislatures, so what was to have been the third amendment got elevated to first. I'm trying to execute a rhetorical flourish here, so please keep your historical accuracy to yourself.)

(And yes, I do occasionally contemplate groups of angry white men proclaiming their 4th Amendment right to brandish automatic weapons, as well as nervous white-collar defendants pleading the 7th.)

We get very little help, alas, from the members of 1st Congress, in elaborating the meaning of those religious freedom phrases, including words like "exercise" and even "religion" (Witte and Nichols 2016: 81-95). For much of the U.S. history, the Supreme Court has wrestled with articulating a standard for deciding cases when religious people, however defined, claimed exemption from laws. In Reynolds v. U.S. (1878), dealing with the Mormon practice of polygamy, Chief Justice Morrison Waite argued that religious people were never entitled to exemptions from otherwise-constitutional laws: To permit this would be... in effect to permit every citizen to become a law unto himself. Maybe, but by the 1940s, when the religious freedom clauses began to be applied to state laws, Waite's non-standard was widely thought to be inadequate. In the 1963 case of Sherbert v. Verner, dealing with a Seventh Day Adventist denied unemployment compensation benefits for refusing to work on Saturday, the Court required a religious exemption because the state (South Carolina) had failed to demonstrate a "compelling state interest." Even when the government demonstrated such an interest, they would also need to prove that denying religious exemptions was the "least restrictive means" possible to attain that interest.

In 1990, a new Justice Antonin Scalia wrote a decision moving the standard back towards Reynolds. In deciding against members of the Native American Church whose ceremonial use of the drug peyote ran afoul of Oregon narcotics laws, Scalia wrote: 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. At another place he used the phrase a neutral, generally applicable regulatory law, which led to this standard being dubbed "general applicability." Even the general applicability standard, though, was not enough to save a Hialeah, Florida ordinance prohibiting animal sacrifices, which the Court found had been specifically aimed at thwarting the Santerian Church of Lukumi Babalu Aye.

The Supreme Court building in 2018

The general applicability standard has not worn well (Volokh 2015).  It was never overruled by constitutional amendment, but a bipartisan effort in Congress restored the compelling state interest for federal law in the Religious Freedom Restoration Act of 1993. Ironically, social conservatives who revere Scalia have proven the most restive; their efforts described by Goldford (2012) to include orthodox forms of Christianity in the original meaning of the Constitution have shifted in these changing times to... claiming religious exemptions from generally applicable laws. In 2015, the Court found 5-4 in Hobby Lobby v. Burwell that the religious owners of the Hobby Lobby Corporation were burdened by the contraceptive coverage requirement in the Affordable Care Act. The Obama administration's arguments for a compelling state interest in providing access to health care were rejected, as well as their proposals for any alternative means to achieve it. (See the companion case of Wheaton College v. Burwell, also a 5-4 decision, finding a religious college was burdened by filing a form to get exempted from the contraceptive provision.)

Most recently, there are last month's 5-4 decisions in Roman Catholic Diocese of Brooklyn v. Cuomo and Agudath Israel v. Cuomo, which found the State of New York's pandemic restrictions on public gatherings improperly applied to attendance at religious services. (See Dawid 2020, Barnes 2020.) Another decision is expected soon on a similar case from California (cf. Liptak 2020). 

Part of the problem with the pandemic cases has been the level of nuance in state restrictions. They can read like Euclidean zoning codes, making hair-splitting distinctions that leave them vulnerable to attack on grounds of favoritism. The Diocese of Brooklyn complained in their petition to the Court they were subject to onerous fixed-capacity caps while [the state was] permitting a host of secular businesses to remain open in "red" and "orange" zones without any restrictions whatsoever.... The result is that Target and Staples can host hundreds of shoppers at a time, and brokers can spend 40 hours per week working and hosting customers in poorly ventilated office buildings, but Catholics cannot attend a 45-minute Mass. When Governor Andrew Cuomo defended the measures because some Catholic and Jewish services had become super-spreader events, the plaintiff organization Agudath Israel said he had drawn targets on a map over neighborhoods of a discrete religious minority (all quotes from Barnes 2020; see also Liptak 2020). 

(The New York orders' alleged discrimination against religious exercise was disputed. Justice Sonia Sotomayor, in her dispute in Diocese of Brooklyn, argued New York treats houses of worship far more favorably than their secular comparators, noting that the orders closed movie theaters, concert venues, and sports arenas, while houses of worship only had to limit attendance. Surely the Diocese cannot demand laxer restrictions by pointing out that it is already being treated better than comparable secular institutions.)

COVID Cases by county, New York and environs
(Source: Johns Hopkins University of Medicine. Used without permission.)

Unlike Hobby Lobby and Wheaton College (Sullivan 2014), the pandemic cases don't involve arguably unresolvable issues of whether the plaintiffs are exercising religion; they unquestionably are. The issue in Diocese of Brooklyn and Agudath Israel is whether there is a compelling state interest. The unsigned majority opinion doesn't reject outright the presence of public health considerations during a pandemic that has officially killed 300,000 Americans and likely has killed 100,000 more. It is also true that America has fared far worse during the pandemic than other industrialized countries, largely because we've been unwilling to impose more stringent restrictions. (The chart at the bottom of the post compares coronavirus death rates among advanced industrial democracies. The United States, an outlier in terms of religious devotion, is not the poorest-performing of the group when it comes to keeping its citizens alive, but many of our less religious peers have done much better.) And some individuals, like health care workers and those with disabilities, are particularly at risk when the contagion is not controlled (Mogul 2020, Wilder 2020).

Yet, the decision argues, The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the first amendment's guarantee of religious liberty. If controlling a deadly pandemic is not a "compelling state interest," what state interest could possibly qualify? Does the First Amendment now require religious exemptions to all laws? I'm proud to be an American, where at most I know I'm free? 

Just like state governments struggling to rationalize pandemic restrictions, the Supreme Court needs for its own and everyone else's sake to avoid appearing arbitrary and capricious in articulating standards for its decisions. With certain notable exceptions, including the Santeria case, the free exercise clause has been interpreted in whatever way favors traditional majority culture: yes to conservative groups wanting exemptions from public health regulations, yes to evangelical business owners who don't want to insure their employees if they have to include contraception, yes to evangelical bakers who don't want to make wedding cakes for gays, no to Native American peyote users or cemetery owners, no to Mormons (at least in the 19th century). Libertarianism for me, authoritarianism for you?

Traditional majority culture has found a home in the Republican Party, as witness overwhelming white evangelical support for Republican candidates from Reagan to Trump (Gjelten 2020); meanwhile it responds to demographic and cultural change by going into a defensive crouch. "It pains me to say this," Justice Samuel Alito told the Federalist Society, "but in certain quarters, religious liberty is fast becoming a disfavored right" (Barnes 2020). Disfavored by whom? That sounds too much like President Trump trying to rediscover the War on Christmas. Five of the six Republican appointees to the Court made up the majority in these decisions. Whose favoritism matters?

In a 2014 blog post, Prof. Winnifred Fallers Sullivan of Indiana University highlights the riskiness of all free exercise jurisprudence:

The need to delimit what counts as protected religion is a need that is, of course, inherent in any legal regime that purports to protect all sincere religious persons, while insisting on the legal system's right to deny that protection to those it deems uncivilized, or insufficiently liberal, whether they be polygamist Mormons, Native American peyote users, or conservative Christians with a gendered theology and politics. Such distinctions cannot be made on any principled basis. (Sullivan 2014)

Protection versus denial is a binary choice, and like most binary choices it is a false one. We can and should agree to protect the religious liberty of all, but take into account the social costs of exercise. Native American Church members should not be driving cars while impaired by peyote, and in fact the controlled nature of their ceremonies prevents that. Religious exercise that prevents non-participants from accessing health care is a different matter, though we could address the flaws in the health care system that give rise to the question in the first place. Religious exercise that puts non-participants at significantly higher risk of contracting a deadly disease should not be arguable... unless we're claiming that protection of religious liberty can never be limited. 

Without a "principled basis" for deciding free exercise cases, and consistent application of those principles, what are we left with but the exercise of power by one group over another? "Religious freedom" is a rather lofty phrase for that.

Thanks to my colleague Dr. Meira Kensky for pointing me towards the piece by Sullivan, and other helpful suggestions.

SEE ALSO: "Rights and Our Common Life," 26 August 2015

PRINT SOURCES

Dennis J. Goldford, The Constitution of Religious Freedom: God, Politics, and the First Amendment (Waco: Baylor University Press, 2012).

John Witte Jr. and Joel A. Nichols, Religion and the American Constitutional Experiment (New York: Oxford University Press, 4th ed, 2016)

DATA

COUNTRY          COVID DEATHS       PER 100,000        % REL V IMP

Belgium                      18,054                        158                    11

Italy                             65,011                        108                    21

Spain                           48,103                        103                    22

United Kingdom         64,402                          97                    10

United States             301,006                          91                    53

France                          57,911                          86                    11

Sweden                          7,514                          74                    10

Switzerland                    5,692                          67                      9

Netherlands                  10,168                          59                    20

Portugal                          5,649                          55                    36

Austria                            4,648                          53                    12

Ireland                             2,126                          44                    22

Canada                          13,553                          37                     27

Germany                        22,475                          27                    10

Denmark                             950                          16                       9

Finland                               466                             8                     10

Norway                               393                             7                    19

Australia                             908                             4                     18

Japan                                2,649                             2                     10

South Korea                        600                             1                     16

SOURCES: New York Times interactive “Coronavirus World Map: Tracking the Global Outbreak,” 12/15/2020; Pew Center for Religion and Public Life, “The Age Gap in Religion around the World,” 6/13/2018

Book review: Why liberalism failed

Deneen, Patrick J. Why Liberalism Failed. New Haven, CN: Yale University Press, 2018. xix + 225 pp.

It is impossible in these times to read Deneen's book--or read any book, or think or do anything--apart from the context of our pandemic. Why Liberalism Failed can be read through a pandemic hermeneutic, or any hermeneutic, because while addressing himself primarily to the American portion of western civilization, he wisely has not spent too much time addressing specific developments like the presidency of Donald Trump or the evolving Affordable (health) Care Act. So his argument remains universal, and can be read in the light of whatever times it's read in, whether now or a decade or more on.

The core of Deneen's argument is that liberalism has failed because its core of radical individualism has left us unable to meet the demands of the world in which we live. By liberalism he means, not the  contemporary political left as seen in the many plans of Senator Elizabeth Warren, but the centuries-old ideology that grew out of the Enlightenment. In contrast to the aristocratic and theocratic regimes that had predominated through world history to that point, classical liberalism

...conceived humans as rights-bearing individuals who could fashion and pursue for themselves their own version of the good life. Opportunities for liberty were best afforded by a limited government devoted to "securing rights," along with a free-market economic system that gave space for individual initiative and ambition. Political legitimacy was grounded on a shared belief in an originating "social contract" to which even newcomers could subscribe, ratified continuously by free and fair elections of responsive representatives. Limited but effective government, rule of law, an independent judiciary, responsive public officials, and free and fair elections were some of the hallmarks of this ascendant order... (pp. 1-2)

Contemporary western political disputes occur within the confines of this ideology, with the "left" promoting individual autonomy in personal life and the "right" promoting autonomy in economic life. These dimensions of the movements have largely succeeded, says Deneen, while their anti-liberal aspects--state empowerment of the individual through universal education and economic empowerment for the left, preservation of traditional moral values for the right--largely have not (pp. 142-143).

In distinct but related ways, the right and left cooperate in the expansion of both statism and individualism, although from different perspectives, using different means, and claiming different agendas. This... helps to explain how it has happened that contemporary liberal states--whether in Europe or America--have become simultaneously both more statist, with ever more powers and activity vested in central authority, and more individualistic, with people becoming less associated and involved with such mediating institutions as voluntary associations, political parties, churches, communities, and even family. (p. 46)

The public triumph of liberal individualism has delegitimized all claims on the individual, paradoxically leaving most people not brimful of power but weak and frustrated. Governments, active in broad areas impossible for John Locke or James Madison to have foreseen, are seen as tools of the wealthy and powerful to maintain their dominance (chs 7 & 8). Consumer goods are widely available, but atomized individuals are powerless against unmitigated market forces that could declare them obsolete at any moment: "Among the greatest challenges facing humanity is the ability to survive progress" (p. 29). Education, seen by liberals like Thomas Jefferson and John Dewey as the key to making democratic society possible, has become an extension of the marketplace, where individuals scramble to acquire the marketable skills--mostly "STEM"--they need to attain a modicum of security (ch. 5). Science and technology, which rationalists saw as the means to enlightened solutions to human problems, have themselves been co-opted by governments and powerful private interests (ch. 4).

Deneen is more about diagnosis than prescription, about convincing the unperceptive public that a seeming panoply of problems--political alienation or at best engaged yelling, environmental destruction, economic insecurity, loss of civility, governmental surveillance--are all symptoms of the radical individualism that is produced by unchecked liberalism. And that this situation is doomed to go smash, possibly very soon. "Taken to its logical conclusion, liberalism's end game is unsustainable in every respect: it cannot perpetually enforce order upon a collection of autonomous individuals increasingly shorn of constitutive social norms, nor can it provide endless material growth in a world of limits" (pp. 41-42). American liberals, take note! We can't provide social-economic inclusion and environmental protection without a social order that constrains our individual choices. American conservatives, take note! We can't both put our faith in an unrestrained economic market while perceiving only the obligations that morality places on others.

If Deneen has children, he might tell them that "there's a right way and a wrong way" out of liberalism's unsustainable self-contradictions. The right way involves connecting and empowering local communities. See, you knew eventually I'd get around to urbanism, and now I have!

Such efforts should focus on building practices that sustain culture within communities, the fostering of household economics, and "polis life," or forms of self-governance that arise from shared civic participation. All such practices arise from local settings that resist the abstraction and depersonalization of liberalism, and from which habits of memory and mutual obligation arise.  (p. 192)

Where do local nonprofits like Legion Arts fit into this analysis?

I am receptive to Deneen’s description of a polity undone by rampant unchecked individualism. I’ve written in much the same vein myself; see this post from 2015. Some days the glass seems half empty, others it seems half full. Even in routine times, it is possible to find evidence from the world around us to support and to refute his argument. Urbanists can testify to the power of the NIMBY (“Not in My Backyard”) phenomenon, the allure of private cars, and how understandable concern for property values limits options for affordable housing. Yet there are also a myriad of voluntary organizations whose members defy the collective action problem to pursue some public good. There is the undeniable draw of civic spaces and third places. And when crises hit, like the Cedar River’s rise in 2016, the helpful response of ordinary citizens is awe-inspiring (see Kaplan 2016).

Both sides of humanity are intensified in the current pandemic. There has been the astonishing run on bathroom tissue among other necessities, gun purchases are up, the array of misinformation and butt-covering starting at the toplevels of government (the Trump administration continues to respond to COVID-19 largely as a problem of public relations), and drivers taking advantage of nearly-empty streets to drive at high speeds. These are happening at the same time medical personnel and paramedics are performing heroically (as are other "essential" workers), ordinary people are by and large attentive to scientific evidence and cooperating with recommendations for “social distancing” and working-from-home, and some are finding innovative ways to support each other across physical separation. In my town Cedar Ridge Distillery and all-purpose entrepreneur Steve Shriver produced batch after batch of hand sanitizer for giveaway, Rustic Hearth Bakery is offering free bread to those in need, singer-songwriter Kimberli Maloy is organizing a city-wide sing-along, and people are sharing ideas about how to support local small businesses. And in our neighborhood, these inspirational chalk drawings appeared over the weekend.

Still, even when we see the glass as half full, we might well ask why in such a far-reaching social crisis it’s only filled halfway?

Eventually, the threat of COVID-19 will recede. Though it will take longer than it did the flood waters in 2016 (or even 2008), when it does recede it will reveal a landscape changed in ways at which we can now only guess. At worst, government and economic elites may be able to use the crisis to expand their power, while those individuals and institutions whose economic vulnerabilities have been exposed by the crisis may never recover. At best, enforced separation might help us understand how much we need and desire the company of others, producing an orgy of empathy and community-building. Or maybe a mix of both, a glass both half empty and half full? Maybe we’ll just be glad to be able to touch our face again without feeling that we’re sealing our own doom.

In any case, Deneen explains why liberalism can’t get us through troubling times. Neither can tribalism, which is pretty much liberalism-in-teams. Only connected communities can do that. As Chuck Marohn of Strong Towns writes, “[D]uring times of distress, leaders—especially at the most adaptable local level—step forward and fill the gaps left by incompetence and inflexibility. We need to support these people because, despite the scariness of the unknown, this is an opportunity to reshape the direction of our entire country. To make our systems more bottom-up and responsive. To make them more humane” (Marohn 2020). Come be an urbanist with me!

Marching for Our Lives

My Washington semester gave me the chance to be present at the March for Our Lives, the massive rally against gun violence organized in the wake of yet another mass shooting, this one at Douglas High School in Parkland, Florida. Parkland students spoke movingly of their experiences, both at the rally and in media interviews. Attendance estimates ranged from 200,000 to 800,000--Washington Metro reported their ridership on the day at 558,375, comparable to a presidential inauguration-- but whatever it was, it was a lot.

My own experience was rather prosaic. I've been attending a Lutheran church in DC, and local Lutherans met up at a church near the site. From there we walked down Indiana Avenue, joining streams of pedestrian traffic that merged to become rivers, until we could make no further progress.

I stood there for an hour or so, hearing some of the speeches and the music, but mostly drawing energy from the crowds around me.

Everyone seemed happy to be there, though they might have preferred a better vantage point. White and black, groups and individuals, Washingtonians and those who came to town for the event were gracious to each other; we'd occasionally move a little to allow a line of people through, either in hopes of finding some Northwest passage to the front, or else to get water. Signs and shirts were not entirely, but predominantly positive. Eventually, after about 90 minutes, I caught one of the lines and surfed it out of there. If you watched on TV you saw and heard more than I did.

I'm glad I went anyway, partly for the historic nature of the event--this might be the biggest thing I've ever been part of--but mostly to stand up and be counted. I'm not just curious; I am angry. Guns have never been central as an issue to me or to this project like economic opportunity, environmental sustainability, community inclusion and place-making. But maybe it should be. A community must be safe to be successful, and people need to feel safe as a basic prerequisite for any community.

So is common conversation. The issue of gun violence has for decades lacked an inclusive conversation; any policy suggestions are met with surly badassery, cultural clannishness to the point of paranoia, and legislative stonewalling. The March for Our Lives gave people--a lot of people--in Washington and around the country the opportunity to demand an end to this, and instead opportunities to discuss the terms for living together.

I wrote this about gun politics 2 1/2 years ago, and don't have much else to say. I don't have a brief for any specific policy measure. A 2017 New York Times column by Nicholas Kristof contains a number of specific proposals suggestions which would make reasonable starting points; I'd also like to look at civil liability for private sales. I am dubious about the efficacy of local ordinances, given the porousness of city boundaries. But as Justice Robert H. Jackson said, "The Constitution is not a suicide pact." We as a country can do a lot better, and it's way past time to start.

P.S. I was nonplussed by a quote in the Post article (cited below) from Robert Johnson of New York City, who attended a counter-protest in Boston: If you run over someone with a car, they don't blame the car. But if someone is shot, they immediately blame the guns. Johnson is obviously ignorant of efforts in cities across the country to redesign streets for pedestrian safety. New York City, his hometown, has been in the forefront of these efforts. You'd have to be willfully oblivious to remain unaware. We have a long way to go to make our streets truly safe for everyone, but we are having the conversations. We should be having the same conversations about guns. There is no excuse not to.

SEE ALSO:
Peter Jamison, Joe Heim, Lori Aratani and Marissa J. Lang, "In Grief, Marching for Change," Washington Post, 25 March 2018, A1 & 19
Natalie Kroovand Hipple, "The Way Cities Report Gun Violence is All Wrong," Washington Post, 26 March 2018

Kristof's list:

1. background checks: 22 percent of guns are obtained without one
2. protection orders: keep men who are subject to domestic violence protection orders from having guns
3. ban under-21s: a ban on people under 21 purchasing firearms (this is already the case in many states)
4. safe storage: these include trigger locks as well as guns and ammunition stored separately, especially when children are in the house
5. straw purchases: tighter enforcement of laws on straw purchases of weapons, and some limits on how many guns can be purchased in a month
6. ammunition checks: experimentation with a one-time background check for anybody buying ammunition
7. end immunity: end immunity for firearm companies; that's a subsidy to a particular industry
8. ban bump stocks: a ban on bump stocks of the kind used in Las Vegas to mimic automatic weapon fire
9. research 'smart guns:' "smart guns" fire only after a fingerprint or PIN is entered, or if used near a particular bracelet

The tragedy of the commons (life)

Every morning before I go to work, I take a “constitutional” walk around my neighborhood. Occasionally I encounter a particular neighbor from the next block who walks his dog across to the median strip so it can relieve itself. (My street is a boulevard not only in name, but in the sense of having a median strip between the traffic lanes that is planted with grass and trees.) Neither the man nor the dog cleans up afterwards.

I’ve never said anything to him other than “Good morning.” It’s hard for me to think of what I would say if I wanted to confront him (which I don’t). There’s no direct harm to me or anyone from the poo itself: Once in a great great while I’ll see some children horsing around on the median, but not many people use it for anything other than a doggy potty. I’m not even terribly fond of the median, the main effect of which is to add distance and something of a barrier between neighbors on opposite sides of the street.

What concerns me about my neighbor’s behavior is that is an example, all the more powerful because of its triviality, of the “tragedy of the commons.” Philosopher Garret Hardin, in a famous 1968 essay with that title, argued that people had an incentive to over-use common property because they enjoyed immediate direct benefits while costs were both widely-distributed and postponed to some future time. What is often overlooked when Hardin is brought up is that he believed that, once informed, those same people could regulate themselves to avoid creating the problems (in Hardin’s essay, of excessive population growth). So, while incentives exist to overuse energy resources, or sprawl into the next county, or drive when roads and parking spaces are “free,” we in time come to recognize the social costs of those behaviors and we stop doing them.

When my neighbor walks over to the median so his dog isn’t pooping in his own yard (where he would probably feel the need to clean it up), it reminds me that while Hardin is probably right about both aspects of his argument, public recognition of community interests that outweigh individual convenience or pleasure is not happening quickly or broadly enough to suit me. It's not just taking the dog to the median or park or college campus so he doesn't have to clean up his own yard. It's protesting a sidewalk project because it would be "disruptive." It's wider auto lanes, with separate lanes for turning left and turning right, so no car ever has to slow down. It's smashing through an older neighborhood to build a limited access highway.

I can't speak for other cultures, but our culture has a strong individualistic strain with a vocabulary to match. Daily advertisers pitch convenience to us as if it were an absolute good, while an oil company offers us "a full tank of freedom." We have yet to develop an equivalent vocabulary to talk about community, or a way to discuss balancing individual and community interests. This needs to happen soon if we're going to live together in this world.

Violence, fear, guns and our common life

"Chi-Raq," Spike Lee's new movie, begins with a map of the United States outlined in guns. Its release poignantly coincides with last week's shootings at a community center in San Bernardino, California. Following so quickly on the Planned Parenthood clinic shootings in Colorado Springs, not to mention the terror attacks in Paris, the latest killings appear to have rekindled anxieties about violence in America. How will we respond? Early indications are that the American political system remains mired in old rhetoric and rigidly defined positions. Can we even respond at all?

President Obama addressed the country Sunday night, in an effort to assuage public fears of terrorism and gun violence. He promised to "destroy ISIL," which is what one might expect him to say despite the elusiveness of the goal, and provided details of military, diplomatic and intelligence efforts to counter terrorism. On guns he called for barring purchases by people on no-fly lists, as well as an assault weapons ban; not unreasonable, but not much impact.

I have never owned a gun, and have no plans to purchase one. So I have at best an outsider's perspective on the role they play in American life and culture. I also don't spend much time worrying about being the victim of an armed assault. At the same time, I recognize the risks that people face are real, and that fear can be as destructive as an actual attack. I'm pained by the high surliness-to-logic ratio of a lot of the discussion. I'm skeptical that the Second Amendment to the U.S. Constitution addresses individual gun ownership at all, much less protects it to such a degree that precludes regulation (see Spitzer for what details there are on the amendment's murky history).

This much I do understand:

• Fear, of the other, or of random violence, is a natural human reaction. Fear is also political currency, and can be exploited if people are willing to have their buttons pushed (as too many are, alas). But the physical and fiscal realities of the 21st century continue to thrust us together. We can't afford to build walls high enough, or roads long enough, to keep us in our respective safe spaces. And while hoping that "a good person with a gun" would pop up and stop a bad guy is understandable, it amounts to nothing more than wishing for a less awful outcome, while overlooking the risks that gun entails at the times when it's not interrupting an assault. (The Cedar Rapids Gazette today reports a rising number of firearm thefts from vehicles.)
• Some Americans own a lot of guns. There are by some estimates more guns in American than people. But despite occasional reports that gun purchases are increasing, driven by fear (of violent attack, or of governmental gun control), the proportion of gun-owning household holds consistently at about 35-40 percent (Morin, "Gun Ownership"). Most Americans own no guns. All those American guns are in relatively few hands.
• The level of gun violence in the United States is exceptional, and not in a good way. New York Times analysis of American news databases found over 300 mass shootings--defined as shootings that left four or more people injured or dead--so far in 2015. Some get a lot of attention, like the ones in San Bernardino, Colorado Springs, and Chattanooga, but a lot goes on outside the media spotlight. But here's the thing: 462 killed by mass shootings in 2015 is barely 1.5 percent of our annual total of gun deaths. According to the National Safety Council, there were 31672 deaths in the U.S. from firearms in 2010, a typical year, more than half by suicide, with a substantial minority by homicide. (The enemies aren't all without.) No other developed country, including Switzerland with its high rates of gun ownership, is even close to this level of gun violence (Lemieux). What are we doing wrong?
• The National Rifle Association isn't helping. Neither are the Republicans, nor for that matter are the Democrats. The NRA is in a fix, albeit one other interest groups can only envy. Since adopting its absolutist interpretation of the Second Amendment in 1977, it has emerged as a political force so powerful it has swept all before it. Like other interest groups, it is in essence a business, which can't sustain itself in a world that has all the gun rights it will ever need (Godwin). Hence the overblown, perpetual crisis rhetoric, with "confiscation" always right around the corner unless we keep up the fight. Because of the political universe the NRA has helped create, the Republicans are offering no helpful policy solutions, while the Democrats offer only tiny incremental policies--barring gun sales to those on terrorist watch lists, for example--that seem mostly oriented to finally getting a victory over the NRA, however small.
• We can only address this problem in conversation. The solutions aren't going to be easy, and they're likely to be complex. They need to take account of the fact that guns are small and easily transported, making municipal regulations impracticable and even state regulations difficult to enforce. They need to take account of a variety of interests: concerns for self-protection; access to materials for hunting or collection; fears generated by openly armed individuals; the dangers of proliferation. Most of all, to accomplish any of this, we need to learn how to listen, how to exchange ideas, and how to work towards solutions that advance our complimentary interests (Fisher et al). Non-negotiable demands are not conversation. Calling people nuts or ignorant is not conversation.
• Gun policy needs to evolve. A perfect comprehensive policy is unlikely to emerge all at once. We need to be able to respond to research on approaches to gun violence--which means there needs to be research on gun violence. The federal ban on research by the Centers for Disease Control is absurd, not to mention paranoid, and should be lifted at once. Then, as in any other policy areas, policy needs to change in response to what is and isn't working.

The vast majority of guns in the U.S. are owned by men.
Men are also somewhat less likely to support gun control.

P.S. One reason I so much admire the work and message of Parker J. Palmer is his enduring belief that the conversations we need to have can occur, that obstacles to having them can be overcome with persistence. I aspire to that level of optimism. Given the rut this issue is stuck in, and how well surliness has worked for the N.R.A., it's hard to imagine getting from here to there. But what's the alternative?

EARLIER POSTS: "Rights and Our Common Life," 26 August 2015; "A Gathering of Spirits in Cedar Rapids," 28 July 2013

SOURCES AND FURTHER READING
 Stephen J. Dubner and Steve Levitt, "How to Think about Guns: Full Transcript," Freakonomics, 14 February 2013, http://freakonomics.com/2013/02/14/how-to-think-about-guns-full-transcript/
 Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In (Penguin, 2nd ed, 1991)
 R. Kenneth Godwin, One Billion Dollars of Influence: The Direct Marketing of Politics (Chatham House, 1988)
 "Gun Ownership in US on Decline," RT.com, 11 March 2013, http://www.pewresearch.org/fact-tank/2014/07/15/the-demographics-and-politics-of-gun-owning-households/ [citing data from 2012 General Social Survey]
 Sharon LaFraniere, Sarah Cohen and Richard J. Oppel Jr., "How Often Do Mass Shootings Occur? On Average, Every Day, Records Show," New York Times, 3 December 2015, A1, A23
 Frederick Lemieux, "Six Things Americans Should Know About Mass Shootings," IFL Science, 5 December 2015, http://www.iflscience.com/editors-blog/six-things-americans-should-know-about-mass-shootings [author is a criminologist at George Washington University]
 Rich Morin, "The Demographics and Politics of Gun-Owning Households," Pew Research Center, 14 July 2015, http://www.pewresearch.org/fact-tank/2014/07/15/the-demographics-and-politics-of-gun-owning-households/
 Robert L. Spitzer, The Politics of Gun Control (Chatham House, 1995)

Rights and our common life

Courts know this and nothing more

Now it's my rights versus yours

--A.C. NEWMAN (THE NEW PORNOGRAPHERS)

I know my rights!

--STEVE JESSUP 

 

As we come to realize that space, resources and opportunities aren't limitless we come to realize our interdependence with other people as well as the natural world. That interdependence can be a good thing (community support in a time of grief, vibrant and interesting places) or a bad thing (taxation, noisy neighbors), but it's real. And unavoidable. The American dream might still be a fast car on an empty road to a big well-accessorized house, but in our waking hours in the real world we are constantly confronted with others. We could try to isolate ourselves, to the extent possible. But if we're realistic, and clever, we look for the upside in cooperation for common goals, while doing what we can to mitigate the nuisances.

And that requires conversation.

Each of the problems of our common life in the 21st century--economic opportunity, environmental sustainability, accommodation of diversity, and so forth--require sustained and ongoing conversation, with everyone involved and contributing. This is hardly a new idea; in the 1830s Alexis de Tocqueville was struck by the vigor of American political discussion.

In certain countries, the inhabitant only accepts with a sort of repugnance the political rights which the law grants him; it seems that occupying him with common interests takes his time away from him, and he likes to shut himself up in a narrow egoism whose exact limit is formed by four ditches topped off by a hedgerow.

From the moment, on the contrary, that the American was reduced to being occupied only with his own affairs, half of his life would be taken from him; he would feel as if there were an immense emptiness in his life, and he would become incredibly unhappy. (Vol. I, Pt. 2, Ch. 6, from the 2000 Hackett abridged edition translated by Stephen D. Grant, p. 99)

Individual rights are part of the conversation, but they exist and are exercised in a context that is a community. In her 1991 book, Rights Talk, Mary Ann Glendon argues that America's strong tradition of individual rights has mutated into a political speech that is predominantly self-regarding. Our legitimate concerns with individual autonomy and limiting the power of government has begotten a people that can only talk in terms of "the lone rights-bearer" (p. 47), without regard to any mutual responsibility, the social nature of human life, or "the sorts of broad-based, free-ranging, reasoned processes of deliberation that our constitutional order both invites and requires" (p. 179). The capacity to negotiate among diverse interests to achieve "win-win" solutions is destroyed when those interests are stated as absolute rights.

By indulging in excessively simple forms of rights talk in our pluralistic society, we needlessly multiply occasions for civil discord. We make it difficult for persons and groups with conflicting interests and views to build coalitions and achieve compromise, or even to acquire that minimal degree of mutual forbearance and understanding that promotes  peaceful coexistence and keeps the door open to further communication. Our simplistic rights talk regularly promotes the short-term over the long-term, sporadic crisis intervention over systemic preventive measures, and particular interests over the common good. It is just not up to the job of dealing with the types of problems that presently confront liberal, pluralistic, modern societies. (p. 15)

Glendon provides a number of examples of the problem, including abortion, where we struggle with an unsatisfying (if opinion polls are to be believed) dialogue that pits the non-negotiable right of the unborn child to life against the non-negotiable right of the pregnant woman to decide the use of her own body. To this I might add the very successful efforts of the National Rifle Association to forestall discussion of gun violence by asserting a non-negotiable right to be armed; the widespread rights of property owners to build regardless of compatibility with the surrounding context; and the power of the states to give energy interests (fracking, pipelines) absolute rights over affected property owners. All this serves to create a winner-take-all political arena that increases anger and probably alienation.

I think it's helpful to distinguish between types of rights. First and foremost on my list is the right to participate in the conversation. That would certainly include voting rights, but also non-discrimination: No religious tests for office, no poll tax, everyone gets to get married, join the military, and so forth. There can't be an open conversation or a common life at all if we have first- and second-class citizens. These rights are so fundamental to our common life that I wouldn't accept any limitations on them, except where they impact the ability of others to participate. (I think of our current campaign financing rubric which allows a few rich people to out-shout the rest of us.)

A second category is the rights essential to quality of life. The U.S. Constitution doesn't address these, but some state constitutions do, and the 1948 Universal Declaration of Human Rights includes the rights to education (Art. 26), rest and leisure (Art. 24), "just and favorable" pay for work (Art. 23) and, in Art. 25, the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Without getting into the weeds of what level of material comfort is adequate, I think extreme poverty blocks the access to economic opportunity which is fundamental to a functional society. Health care, as envisioned by the Affordable Care Act of 2010, is one element of that opportunity.

Another important category would be protections against governmental power (which John Stuart Mill, in On Liberty (1861), would extend to protections against majority power however it is exercised). The Bill of Rights explicitly protects religious conscience, the right to bear arms (however understood), property, the rights of criminal suspects and the jurisdiction of state governments, and by implication personal privacy as well. None of these has historically been understood to be inflexible. I see them as important protections for individuality that should be part of any conversation, but not so absolute as to shut off that conversation. Accommodations to religious employers under the Affordable Care Act seem to me not only appropriate, but important. The assertion currently before the federal courts by the Little Sisters of the Poor that even requiring a religious employer to certify to the government that they're claiming a religious exemption is an infringement of religious liberty, on the other hand, seems to be claiming a privilege to cut off conversation altogether.

Finally, there are assertions of right to some benefit, often but not exclusively material in nature, which I would I would term privileges. Pretty much this means the right to do or have what I want to do or have, against some real or proposed restriction. A number of European countries provide a "right to roam" for walkers on private land. Most American metropolitan areas have considerable areas devoted to free public parking, which might not be stated as a right but certainly has become an expectation. This weekend's Go Topless Day asserts the right of women not to cover their breasts in public. I would include calls for public school prayer in this category, being the desire for some religious tradition to get official blessing or recognition. Some of these ideas might be beneficial, but they strike me as clearly part of the collective conversation rather than precedent to it.

This has been an awfully abstract post, but I think this needs to be set out prior to discussion of other, specific issues that affect (or afflict) our common life. In short, I follow Glendon in arguing that "rights talk" is way overused in American politics, often with the effect of precluding rather than participating in conversation about our common life. That is a luxury we no longer have.

SOURCE: Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (Free Press, 1991). On joint gains or "win-win" solutions, see Paul J. Quirk, "The Cooperative Resolution of Policy Conflict," American Political Science Review 83:3 (September 1989), 905-921. More generally see Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In (Penguin, 3rd ed, 2011); Dean G. Pruitt, Negotiation Behavior (Academic Press, 1981); and probably bunches of books that have come out since I encountered this concept back in the day.