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How Could Religious Liberty Be a Human Right?

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A growing number of scholars think “religious liberty” is a bad idea.  The unfairness objection is that singling out religion for special protection is unjust to comparable nonreligious conceptions of the good.  The distraction objection asserts that religious liberty is a misleading lens: oppression sometimes occurs along religious lines, but the underlying conflicts often are not really about religious difference.  Both objections are sound, but under certain conditions religious liberty should nonetheless be regarded as a right.  Law is inevitably crude.  The state cannot possibly recognize each individual’s unique identity-constituting attachments.  It can, at best, protect broad classes of ends that many people share.  “Religion” is such a class.  Where it is an important marker of identity for many people, it is an appropriate category of protection.

That's the argument of my newly published article in the International Journal of Constitutional Law, here.  The same issue of the journal has a critical response by Prof. Gita Stopler, here, with a rejoinder by me, here.

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cjmcnamara
3 days ago
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shared because everyone fights about this stuff
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Goodbye to All Quack

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My colleague Marina Koren recently posted to social media: “Patiently waiting for the mandarin duck's wistful ‘Why I Left New York’ essay.” Imagine my delight, some hours later, when this article submission came to me:

I remember now, with clarity that stirs the feathers of my nape, when New York began for me, but I cannot lay my bill upon the moment it ended.

It was autumn, and I landed on a pond in plumage which had seemed  very smart on the forested edges of a river in eastern China, but seemed less smart already even some blocks from the couture of big city streets.  

Of course it might have been some other city, might have been Tokyo or Manilla or even San Francisco. But because I am talking about myself I am talking New York. That first night, all I could do was think of the stories I would tell the female Mandarin duck I already knew I would not mate with this spring. “I could see the skyline of Brooklyn from my pond in Prospect Park,” I would muse at the end of my travels.

As it turned out, the pond was in Central Park, and I would depart westward.

In retrospect, those days before I knew the location of my pond were happier than the ones that came later, when crowds began to line up, gawk, and tag me on Instagram. It is often said that New York is a city for only the very rich and the very poor. It is less often said that New York is a city only for the obscure or the very famous. But I was then in love with the city, the way you love a female at mating time, only to depart once the eggs hatch, leaving your mate to care for perhaps a dozen ducklings.

I still believed in possibilities, still had the sense, so peculiar to New York, that something extraordinary would happen any minute, any day. I could attract a photographer from an international wire service, be featured on all the morning shows, or spitefully defecate on patrons leaving the Peking Duck House on 53rd Street and none of it would matter. It never occurred to me that I was living a real life there. I imagined I would only stay until the marathon or at the latest Thanksgiving.

I am not sure anyone brought up in America can appreciate entirely what the idea of New York means to Mandarin ducks. To a Far East duck, New York was no mere city. It was instead an infinitely romantic ducktale, the mysterious nexus of population density and relatively clean air. “Plenty of bread crumbs, yet easy on the lungs,” the proverb goes.

Some weeks passed, but I still did not lose that sense of wonder. Like A&E’s reality-TV killers, I began to cherish attention, the sense that at any given time untold millions would know exactly where I was and what I was doing. I liked the seductive and satisfactory rhythm of attracting and thrilling birders, social media influencers, and web producers, my plumage resplendent on retina screens and 4-K TVs and glossy print spreads. New York even named me the city's most eligible bachelor.

On a short day-trip, I completed an aerial tour of The Big Duck in Flanders, on Long Island, which pleased me obscurely. So did sneaking up behind a food vendor in the wee hours one morning and quacking, “Aflac!"

I nailed the accent.  

I was not then guilt-ridden about spending New York minutes on flights of fancy or practical jokes. I still had all of the time here in the world.

But daytime highs will drop to 40 degrees by next Wednesday. I'm  dreading the tourist crush that Thanksgiving week will bring. And the Tom Turkey float planned for the Macy's parade is a sight I'd rather not see.

So take your final photographs now, humans of Central Park. For I am one to profit from the experiences of others, and intend to migrate to Los Angeles before the despair of winter sets in and you’re all sick and tired.

The Mandarin ducks I know will find my new residence a curious aberration. But the ponds of Los Angeles do not freeze, the tortillas and the cornmeal that surrounds tamales are tasty West Coast treats, the birds on the Venice canals are sometimes fed bread from Gjusta, Disneyland visits are easily made with the promise of churro bits, I am eager to swim in Drake’s pool in Hidden Hills, and I relish proximity to the NHL’s finest franchise, not to mention LeBron. I will nibble avocado toast on the Pacific, smell jasmine all around, and know that I am home.

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cjmcnamara
3 days ago
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pretty torn up about mandarin duck's departure tbh
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The United States Needs a Democracy Movement

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While most headlines have focused on the divergent successes of Democrats and Republicans in the House and Senate, respectively, the 2018 midterm elections featured mixed results on another important dimension: electoral reform.  Ballot measures on various aspects of election law appeared on the ballots in 14 states, and most of them passed.  Voters in Colorado, Michigan, and Missouri (and possibly Utah) approved measures to establish more independent redistricting processes.  Michigan and Maryland voters passed laws to make registering to vote easier, and Florida voted to re-enfranchise approximately 1.4 million people who have completed sentences for prior felony convictions.  At the same time, though, voters in Arkansas and North Carolina approved requirements that voters to show a photo ID at the polls, making it more difficult for many people (disproportionately members of minority groups) to vote.

For nearly all activists involved in electoral reform, these outcomes will seem a mixed success.  But to most citizens, these results all look like a win for democracy.

Despite the clear divide in partisan activism on these issues, and the resulting geographic disparity in the direction of electoral reform measures, there is striking consensus among Americans in support of the most salient electoral reform proposals, regardless of which party tends to favor them.

That attitudes toward electoral reforms have proven relatively resistant to polarization, despite the tense political climate, and despite activists’ efforts to unmask opponents’ electoral reform agendas as naked partisan power grabs, is rather remarkable. It suggests that most Americans (if not our political leaders) do actually have a deep commitment to the value of fair elections, coupled with an ecumenical perspective on the threats to that value.

In short, the US is fertile ground for a democracy movement.

The 2018 midterm results have left me cautiously optimistic for the prospects of an electoral reform agenda aimed at increasing voter turnout and increasing the representativeness of the electorate.  But stoking citizens’ support for electoral reform into the kind of democracy movement that can spread popular practices like automatic voter registration – or even more dramatic reforms like an Election Day holiday – beyond progressive stronghold states will probably require finding a way to bundle the issues of fair electoral competition, voting rights, and electoral integrity together in a way that appeals more completely to citizens’ concerns about the electoral process.

This will undoubtedly seem absurd to many of those fighting on the front lines of the battle for voting rights, since the cause of voting rights in recent years has become nearly synonymous with the fight against increasingly strict voter ID laws.  But however suspect the motives of the activists and politicians behind such laws, the vast majority of activists continue to see voter ID laws as simply common sense and perfectly compatible with a general impulse to make voting easier and more accessible.  Difficult as it may be to stomach, incorporating moderate voter ID laws into a progressive reform agenda might make a democracy movement more intuitively appealing to voters and better able to gain an enthusiastic following (the kind of enthusiastic following that can pressure reluctant politicians into enacting pro-democracy reforms).  Such an agenda might also give progressives more leverage in pressing for reasonable accommodations within these laws and for ensuring effective access to the required form of ID.

And, of course, there are good substantive reasons for progressives to want to wrest control of the election security issue from the forces of voter suppression.  No amount of evidence, it seems, will be able to convince the public that in-person voter fraud is rare, and the persistent perception that voter fraud is a major problem does present a real threat to democracy in a society already characterized by deep distrust of the government and of the political opposition.  Meanwhile there are other potentially significant threats to the integrity of elections (like faulty or hackable voting machines, and a lack of effective and impartial oversight) that might be most politically palatable as part of a comprehensive package of election security measures.

I don’t mean to claim that this represents the only way forward for progressive electoral reform.  Instead I want to emphasize that democracy-enthusiasts have a good opportunity to redirect Americans’ enthusiasm for systemic political change from the constant appeals of “outsider” campaigns toward a popular movement for election reform.  We will need to think creatively, though, about how to make such a democracy movement exciting to ordinary citizens, and resistant to polarization.

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cjmcnamara
3 days ago
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HarlandCorbin
3 days ago
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I like voter ID requirements. I feel, however, that if a state enacts ID requirements, that state should have a provision that provides a free voterID to each registered voter that needs one. That way, nobody is disenfranchised by the ID requirement.
SteveRB511
3 days ago
I think that's a very good idea.

MMMBop + Beck's Dad x 25+ years x symphony orchestra = String Theory

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NPR has a lengthy article about, and an even more lengthy [1h23m] First Listen of Hanson's new album String Theory -- a double album, career spanning retrospective recorded with a symphony orchestra playing arrangements by David Campbell, who amongst other things of note is Beck's father.

Like, just listen to the thing. It's an astounding piece of work. I wasn't prepared, and you likely aren't either and so just listen.
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cjmcnamara
4 days ago
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emoji siren orchestral mmmbop
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Top Legal Ethics Expert (Stephen Gillers) Writes: Whitaker Should Be Recused

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[Editor’s note from Ryan Goodman: I asked a foremost expert on legal ethics and professional responsibility, Stephen Gillers, to share with Just Security his views on Matthew Whitaker’s appointment as Acting Attorney General and, in particular, whether Whitaker should be able to oversee the Mueller investigation. Professor Gillers’ response follows.]

The media commentary surrounding the decision to put Matthew Whitaker in charge of the Mueller investigation is a bit muddled, as often happens when legal questions are suddenly thrust into the headlines.  A critical distinction is needed between ethics and recusal.

Whitaker has repeatedly expressed hostility to any expansion of Mueller’s jurisdiction beyond the possibility of collusion between the Trump campaign and Russia. That includes expansion to investigate Trump family finances.  A fair reading of his comments suggests that he also has doubts about the decision to appoint a special counsel at all.

This history raises two questions. First, can Whitaker oversee the Mueller probe as a matter of legal ethics? The answer to this question is easy. Yes. Or to put it another way, Whitaker could not be disciplined as a lawyer if he were to decide to substitute himself for Rod Rosenstein as the person to whom Mueller reports. Of course, this assumes that any decisions Whitaker makes as Mueller’s supervisor were within the broad but not unlimited scope of traditional prosecutorial discretion. He would obstruct justice if he quashed or crippled the Mueller investigation for the purpose of protecting Trump or for political advantage.

The second question is whether Whitaker’s stridently harsh comments  about the special counsel’s work warrant his recusal from overseeing the Mueller probe. The question of recusal is not the same as the question of legal ethics. Nor should it be. The Department of Justice must be concerned not only with the ethical exercise of prosecutorial discretion in fact, but also with the public’s confidence in the exercise of that discretion. So  conduct that would not be unethical may nonetheless require recusal. And that is true here.

Whitaker should be recused. His repeated expression of hostility to the Mueller investigation makes it impossible for the public to have confidence in his ability to exercise the necessary prosecutorial judgment in supervising Mueller. Bolstering that conclusion is the fact that his public comments on the special counsel’s work were uninformed. He condemned expansion of the Mueller investigation beyond possible collusion with  Russia when he could not have known what evidence Mueller had uncovered, and on which Rosenstein may have relied, justifying any expansion. While Whitaker was free, of course, to speak despite his ignorance in this regard, his precipitous judgment further undermines the ability of the public to have confidence in the decisions he would make if he were allowed to supervise Mueller.

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cjmcnamara
4 days ago
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"The question of recusal is not the same as the question of legal ethics. Nor should it be. The Department of Justice must be concerned not only with the ethical exercise of prosecutorial discretion in fact, but also with the public’s confidence in the exercise of that discretion. So conduct that would not be unethical may nonetheless require recusal. And that is true here."
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I KNOW WHY YOU'RE SAD.

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On paper, Tuesday was a good day for Democrats. They took the House for the first time in eight years. Several important Governorships (in advance of post-Census 2020 redistricting battles) were won. Notably vile Republicans like Kris Kobach, Scott Walker, and Dana Rohrabacher lost. The high-visibility Senate races Democrats lost (Missouri, Tennessee) were pipe dreams anyway. You already knew that Florida sucks, hard. So you're not sad because "The Democrats did badly."

You're also not sad because Beto lost, or Andrew Gillum lost, or any other single candidate who got people excited this year fell short. They're gonna be fine. They will be back. You haven't seen the last of any of them. Winning a Senate race in Texas was never more than a long shot. Gillum had a realistic chance, but once again: It's Florida.

No, you're sad for the same reason you were so sad Wednesday morning after the 2016 Election. You're sad because the results confirm that half of the electorate – a group that includes family, neighbors, friends, random fellow citizens – looked at the last two years and declared this is pretty much what they want. You're sad because any Republican getting more than 1 vote in this election, let alone a majority of votes, forces us to recognize that a lot of this country is A-OK with undisguised white supremacy. You're sad because once again you have been slapped across the face with the reality that a lot of Americans are, at their core, a lost cause. Willfully ignorant. Unpersuadable. Terrible people. Assholes, even.

You were hoping that the whole country would somehow restore your faith in humanity and basic common decency by making a bold statement, trashing Republicans everywhere and across the board. You wanted some indication that if you campaigned hard enough, rednecks and white collar bloodless types alike could be made to see the light that perhaps the levers of power are not best entrusted to the absolute worst people that can be dredged up from Internet comment sections running on platforms of xenophobia, nihilism, and racism. In short, you wanted to see some evidence that corruption, venality, bigotry, and proud ignorance are deal-breakers for the vast majority of Americans.

And now you're sad because it's obvious that they aren't. Even where horrible Republicans like Walker or Kobach lost, they didn't lose by much.

So I get it. It's depressing. There's no amount of positives that can take away the nagging feeling that lots and lots of people in this country are just…garbage. They're garbage human beings just like the president they adore. These people are not one conversation, one fact-check, and one charismatic young Democratic candidate away from seeing the light. They're reactionary, mean, ignorant, uninteresting in becoming less ignorant, and vindictive. They hate you and they will vote for monsters to prove it.

Remember this feeling. Remember it every time someone tells you that the key to moving forward is to reach across the aisle, show the fine art of decorum in practice, and chat with right-wingers to find out what makes them tick. Remember the nagging sadness you feel looking at these almost entirely positive results; it will be your reminder that the only way to beat this thing is to outwork, outfight, and out-organize these people. They are not going to be won over and they will continue to prove that to you every chance they get.

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cjmcnamara
5 days ago
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gin and tacos absolutely spot on once again
acdha
5 days ago
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Washington, DC
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5 public comments
zwol
4 days ago
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This seems like the right place to tell the story of the dude who drove me to the airport the other day. His other job, apparently, was owning a gun store, and when talking about guns his opinions were informed and reasonable , e.g. "banning bump stocks won't stop school shootings, but we should require gun owners to go through safety training and have proper gun safes," ok, I can see that. But then the conversation took a hard right turn into Fox News conspiracy land: all politicians are corrupt, Planned Parenthood spends 10x as much money on lobbying as the NRA, etc. etc. etc. and I just didn't know what to say.
Pittsburgh, PA
tdarby
5 days ago
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Yes.
Baltimore, MD
rocketo
5 days ago
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How many words fit on a sampler? I don’t want to get this as a tattoo.

“Remember this feeling. Remember it every time someone tells you that the key to moving forward is to reach across the aisle, show the fine art of decorum in practice, and chat with right-wingers to find out what makes them tick. Remember the nagging sadness you feel looking at these almost entirely positive results; it will be your reminder that the only way to beat this thing is to outwork, outfight, and out-organize these people. They are not going to be won over and they will continue to prove that to you every chance they get.”
seattle, wa
lelandpaul
5 days ago
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Oh, this is so hard for me. On the one hand, the piece is dead right: This is exactly what I'm feeling today.

On the other: I fundamentally believe people are redeemable and that we shouldn't write them off. (That's sort of core to Christianity...)

I don't know how to reconcile these two things.
San Francisco, CA
sirshannon
4 days ago
You can’t redeem the unwilling.
lelandpaul
3 days ago
But does that give you the right to stop giving them opportunities to redeem themselves?
sirshannon
1 day ago
Yes. You’re not powerful enough to stop someone from redeeming themselves any more than you are powerful enough to make them redeem themselves. As long as you’re not actively working to prevent them from doing the right thing, you’re good.
notadoctor
5 days ago
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“They are not going to be won over and they will continue to prove that to you every chance they get.”
Oakland, CA
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