Here is link to an essay on "Clashing Consciences" I did for the Washington Post's On Faith Section. Michael Perry of Emory Law School posted it on the Mirror of Justice, and in a flash, my colleague Rick Garnett had a reply up on that blog disagreeing with it. That man has too much energy!But seriously, I found Ricks response quite interesting, because it allowed me to crystalize some thoughts I've been having about what are the elements of a "culture war mentality" --of which as readers of this blog know, I am not a big fan. My very smart former student, Matt Emerson pressed me on why in a prior combox--for which I am grateful.Here are my three questions:1. When Do the Merits Count and Why?2. Do Religions Always Deserve Special Treatment?3. Do Lawyers Make the Best Culture Warriors?1. When do the merits count and why?Is it helpful to frame legal and jurisprudential questions in a general way on hot button issues such as abortion and gay marriage, or is should one always allow the framing to be controlled by one's own view of the underlying merits?The point of my piece was to step away from the merits and to point out the structural similarity between the bishops' approach on abortion, and the one hand, and gay rights activists with respect to benefits for same sex couples, on the other. The vantage point I was taking was more sociological--or political scientific. On different questions, they both have advocated a law of general applicability that a) tracks the current consensus; and 2) advances their own view of the way things morally are, really. They both are reluctant to grant exceptions to that law to people to act according to a different conscientious judgment precisely because the point of the law is to advance their respective moral view (pro-life, or pro-gay-rights, respectively).Rick, as I read him, is uncomfortable with this sort of neutral framing. He says, the "merits matter." My response: Yes, the merits matter --but they matter to everyone not just to you and me. Moreover, the problem in a pluralistic society is that everyone has a different view of the merits, and we have to figure out how to get along. So the pro-choice people pressing a claim of conscience will say, "Hey, wait a minute, abortion is a constitutional right. Just as the bishops in the Catholic Charities case say, "Hey, wait a minute, freedom of religion is a constitutional right."And if everybody pushes their view of the merits of the matter--without any regard to the conscientious views of anyone else, then we are moving toward culture war. In fact, one could argue that the very idea of the culture wars are born from the idea that the merits are ALL that matter about certain key issues, even in a pluralistic society where people disagree about the merits. In my view, overcoming the culture war with regard to a particular issue has to mean seeing the question from the other side--attempting to see how someone who is reasonable could take the position that they take--even if it is wrong. And that's what my framing tried to do.2. Are Religions Always Special in a Good Way?Are the actions of religious groups deserving of special consideration when they break with the common morality? It is interesting in Rick's reply that while, with respect to abortion, he wants to go to the merits, with respect to discrimination in the provision of benefits, he doesn't--he wants to invoke a structural consideration. Merits on abortion, yes, but merits on discrimination, no. The discrimination is being done by a RELIGIOUS group, acting on deeply held religious beliefs, and therefore should not be scrutinized, or should be given less scrutiny. Religious groups, for him, have special claims to conscience protection.Here I'm not so sure. Do we really want to commit ourselves to the view that religious groups --all religious groups-- have special claims to violate public morality? Most people are not inclined to give special consideration to a religious group that doesn't want to give equal treatment to racial minorities. So what are the alternatives: 1) Are we "peeping" at the merits here--we're more sympathetic to discrimination against same sex couples than against race; 2) Are we tacitly acting on a distinction between "good" religious groups (ours) and "bad religious groups ("theirs"), and making ad hoc distinctions in argument to justify that?One might argue that the fact that it is a religious group or belief that is justifying a morally question able action makes the whole act (in a Thomistic sense, which includes motive) better--or at least less bad. That was in fact, Las Casas's argument about the natives doing human sacrifice--it showed deep honor to God. But one might also argue that the fact that the questionable act is done for religious reasons makes it worse -one could reply to Las Casas that murder in the name of God is a greater travesty.Is the underlying idea that religion is good--but then how do we define religion? If we define it as broadly as the Supreme Court did in Seeger (pretty much any matter of absolute concern-Tillichean) then what difference does it make--it could include any secular charity. If we define it more narrowly, what are the criteria?3. Do the Culture Wars Privilege Lawyerly Modes of Analysis?It strikes me, and I may be wrong, that a hallmark of the culture wars is instrumental analysis and reasoning about matters of law and public policy Culture warriors make an argument because it advances their view of the way things should be --the merits -- on an ad hoc basis--and make a different argument on a different issue. Arguments are simply tools to defend positions that are held on other grounds.Lawyers do this all the time in litigation in an adversary system. But the public square isn't a courtroom. And I have come to think this strategy is deeply misguided as a way to guide intervention in the public square. I think it threatens makes straightforward thinking and analysis impossible, and ultimately threatens to make all interventions in the public square purely strategic and ad hoc. A culture war mentality undermines public moral deliberation, because it treats public statements, and interventions as mere means to achieve an end that is not subject to deliberation--whether that end is outlawing abortion or promoting gay rights. There are culture warriors on all sides of the political spectrum.So, here's my example. One of the arguments used to defend Stupak Amendment is this idea that money is fungible. No amount of public funds, no matter how small, can go to any benefit plan that includes abortion, no matter how small a portion of the premium goes to abortion, because money is fungible. Leaving aside the merits of the Stupak Amendment, this argument has real legs --and I'm not sure where it's going to walk next. If money is fungible here, it is fungible everywhere--and why couldn't it be used, with the same effect, to stop students taking Pell Grants to Catholic colleges, or to stop the funding of faith based initiatives --or even to stop the funding of Catholic Charities?As a scholar,and as a Catholic scholar, that inconsistency bothers me very much. I think it's part of a Catholic scholar's job to point that out, and to ask why? My sense, however, is that a Catholic culture warrior would say "Be quiet--Let's get Stupak through, and worry about the rest later. Don't cause problems now."Is that sense right?

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.

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