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The Separation of Church and Market?

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16 Responses

  1. A.J. Sutter says:

    The Orthodox Jew who selects a kosher butcher isn’t in a role analogous to the doctor, but rather to the patient. A more accurate comparison would be to whether a kosher butcher can refuse to sell to a non-Jew on grounds that the person isn’t a Jew, or to a Jewish person whom he thinks isn’t observant enough (e.g., a male Jew with an uncovered head, which is my own typical condition). Or suppose I walk into a butcher shop on a Thursday evening, point to a cut of meat and ask, “Will this keep in the fridge for a day or two?” The butcher, if he knows I’m Jewish, might get alarmed because I might cook the meat on Shabbat (which runs from Friday sundown to Saturday sundown, roughly), and there’s a commandment that a Jew should not induce a fellow Jew to profane Shabbat (cooking being prohibited on that day). Can he refuse to sell it to me because I’m a Jew and because of his religious beliefs? In the US, the butcher could not.

    Of course, you might try distinguishing this example, too, because the butcher would also be discriminating against me or a non-Jewish customer because of my, or the gentile customer’s, religious beliefs. But this ambivalence exists in most conscience cases, too. Someone who goes to a doctor to abort a post-rape or incestuous pregnancy doesn’t have religious beliefs that preclude such a procedure (at least in their own case, even if they regret or feel guilty about it). So the doctor is never a monad in this analysis.

    There are also some considerations specifically regarding doctors that don’t apply to most other professions. There are medical situations in which time is of the essence, and also there are many communities with shortages of doctors, or where most doctors tend to share religious beliefs. This makes it unreasonable for the patient to have to shop around.

    I note that there are some Western liberal legal systems where the opposite concusion might be possible. I haven’t checked the current law, but I remember reading a German decision about 25 years ago by, I think, a Landgericht (like a state supreme court in the US), which held that denominational hospitals were not bound by Land-mandated educational requirements for staff. The reason? The “separation [Trennung] of Church and State” guaranteed by the Grundgesetz, the German constitution. In Germany, “separation” means that denominational institutions are shielded from certain requirements promulgated by secular authorities. (I don’t know if this extends to exercises of conscience at an individual level, however, which might be under the “free exercise” clause in the GG.) But in the US we interpret “separation” differently.

  2. Paul Gowder says:

    Nate, there’s no tension between liberalism and the existence of special professional duties — all sorts of people can have special duties in liberal societies as a result of their relationships with others — parents have special duties to their children (and vice versa), politicians have special duties to the political community as a whole, etc.

    I think you conceal the perfect normality of this sort of thing when you suggest that imposing special duties on doctors makes them non-equal citizens, “different kinds of people.” It is not that they are different kinds of people, rather, it is that they exist in relations other than “co-citizen” and “arm’s length market participant.” One of those relations is the relation of medical provider and patient, and that relation has a different sort of duty — a doctor has different duties as a doctor than she does as a parent than she does as a juror than she does when she sells her house or her services in some non-medical capacity. And the doctor is free to act as a citizen in just as pro-life a fashion as she chooses, subject to the same constraints that exist on every other citizen. It is only as a doctor that her conscience is constrained.

  3. Paul Gowder says:

    (Also note that all regulated professions entail special duties that don’t contradict liberalism. If you or I decided to go back and actually practice law, we’d be subject to all kinds of constraints on our consciences — your conscience might tell you to tell your client’s wife that he was cheating on her — you may even believe that’s a command of your religion — but the special duties that come out of the relationship between a lawyer and a client, duties that are enforced by law, forbid it. Does this mean you become less of a citizen?)

  4. A.W. says:

    I think to say that Smith, which says that, more or less, that there isn’t a right to take peyote in contravention of the criminal law (and to get benefits for being fired for violating that law), is analogous to the doctor who refuses to do certain abortions is just plain wrong. The fact is that the second case starts to actually offend the 13th amendment. The framers, for instance, witnessed with horror the fugitive slave act of 1850, which conscripted everyone into the pursuit of so-called fugitive slaves. They didn’t approve of it. So it is not a radical departure to say that the founding fathers would have taken a dim view of coerced service. indeed, its pretty hard to explain to me how this law doesn’t constitute involuntary servitude. Finally, a policy point. if you put too many burdens on doctors pretty soon you will find that you don’t have any doctors left.

  5. Howard Wasserman says:

    I am sympathetic to Paul’s analysis, but I wonder if his last example cuts the other way. Can’t a lawyer refuse to take on a client or refuse to represent a client in particular matters, including for reasons of conscience? I am not obligated to represent the Nazis when they sue to be able to march in Skokie. Aren’t the conscience clauses for doctors, pharmacists, and other medical-care providers the same thing? And if not, why not?

    Is there a difference between medical care (broadly defined) and legal services? Or is it about sub-specialties–a lawyer with conscience-based objections to (wild example) women in the workplace should not set up shop as a plaintiff-side employment lawyer because his conscience will not allow him to fully and zealously represent his client; a doctor with conscience-based objections to abortion/contraception may not be able to set up shop as an OB-GYN for similar reasons; ditto for a pharmacist with conscience-based objections to contraception.

    Finally, let me try a different take on the kosher butcher that I think provides the analogy: The only butcher shop in the area is kosher and thus does not carry pork. Does that act of conscience interfere with the market rights of non-Jews in the area who need to buy ham?

  6. Nate,

    The “second approach” to the market elides the difference between civil society and markets, the latter providing economic coordination through social and material institutions that are, of course, unavoidably and partially constituted by the state (i.e., through law: the fundamental insight of Legal Realists and institutional economists, as Barbara Fried’s work makes clear). Markets ramify throughout and impinge on the “private sphere” or intimate realm, as well as civil society. One problem in Liberalism traditionally has been a failure to sufficiently distinguish the notion of civil society (which, like the marketplace, is partially constituted by law) from the marketplace, however much the two “realms” overlap. The latter endeavors to satisfy the common interests of buyers and sellers while civil society is the space oriented around the myriad values, goals, and interests of individuals who may be acting in their capacity as private persons, economic agents, political actors and so on. Thus, for example, when some socialist theorists (e.g., Diane Elson) propose “socializing the market,” they are endeavoring to bring to bear the aforementioned values, goals and interests in a manner that places narrowly construed “economic interests” in a bigger picture so as to limit those occasions when the latter unjustifiably trump the former. This is why, for instance, Michael Luntley, in The Meaning of Socialism (1990) writes that “central characteristic” of socialism is a eudaimonistic-like “concern for the good life” (which, by the way, goes back to the ‘utopian socialists’ disparaged in many ways by Marx but also to Marx himself, as Jon Elster makes clear in his essay, ‘Self-realisation in work and politics: the Marxist conception of the good life’): “What matters is whether the economy is so organised that the needs of people and the authority of the good are displaced by the needs of Capital and the profit motive.”

    In not sufficiently distinguishing civil society from the marketplace, Liberalism further fails to sufficiently distinguish a democratic society from a capitalist one, hence our society is one in which the economy is primarily arranged for the benefit of Capital, which by necessity and default, comes to define “the good” in such societies, owing to the fact that the economy is primarily arranged for the benefit of capitalists, and it is their interests which trump if not trample upon other values, goals and interests that may conflict with this capitalist conception of economic interests, hence the truth of the proposition that “Under capitalism life is lived not under the Authority of the Good, but under the aristocracy of capital.”

    And of course those who want to “privatize religion,” endeavor to confine it to the intimate realm, whereas religion, insofar as it is one of the repositories of those traditions and reference groups that enable us to articulate our conceptions of the “good life,” is part and parcel of civil society and therefore one potential source for criticizing and transcending narrowly capitalist construals of “the good.”

    The choices, therefore, that one makes in civil society, should not be construed as simply or solely on the model of “economic” ones, as the kosher butcher example makes plain. Markets operate largely on the terrain of civil society, but they are not identical to civil society, even if in our own time the Liberal elision of the distinction has in practice meant that Liberalism tends to instantiate the act of economic choice as the incarnation of the highest good and civil society is virtually indistinguishable from the marketplace.

  7. A.W. says:

    Howard

    Well, i would wonder… if there are gentiles who can’t buy ham, or more tragically, bacon (the horror!), then surely with an unmet need in the market, we can assume the market will come in.

    Suppose for example that we pass a law saying that if you are going to be a butcher, you have to serve pig. Okay, so then the kosher butcher quits the profession. Now you have gone from a kosher butcher to no butcher at all, not exactly an improvement.

    The biggest mistake that regulators make is to assume that the regulated won’t leave. So they tax you up the wazoo in D.C. forgetting that if you only drive 10 miles in any direction you escape all of that. only a few years ago with malpractice insurance and lunatic juries, DC had successfully driven every obstetrition out of the jurisdiction and i honestly haven’t followed that situation enough to know if they ever reversed that. Did that really serve the pregnant women of DC, forcing them to go to MD or VA to get care? My cousin was a prison doctor, being told every day he will get stabbed or sued by inmates looking to hurt pretty much everyone. He got sick of it and quit his job. Are those prisoners better off without him?

    At some point, you infuriate a person enough, they will finally go john galt on you. And then what will you do?

    And let me say, i don’t read you as disagreeing with me on these points. i am frankly not sure how you feel. but fwiw, that is how i feel.

  8. A.W. says:

    Patty

    You know, all that needlessly complex language is clearly designed to cover up the fact that you are just plain dumb. For instance you write that markets “are, of course, unavoidably and partially constituted by the state (i.e., through law: the fundamental insight of Legal Realists and institutional economists, as Barbara Fried’s work makes clear).”

    Um, no, not really. Where is the state constituting the market for drugs or illegal immigrant labor?

    > as well as civil society

    And of course you don’t seem to know what civil society is, or have decided to redefine it to… well, best as I can tell, to make your writing even more confusing. Apparently when you took your legal writing seminars, you fell asleep during the part where they said that clarity was a virtue in legal writing.

    > Liberalism further fails to sufficiently distinguish a democratic society from a capitalist one

    Well, in fact, when government controls your economic life, its hard to have a democracy.

    > owing to the fact that the economy is primarily arranged for the benefit of capitalists, and it is their interests which trump if not trample upon other values, goals and interests that may conflict with this capitalist conception of economic interests,

    Riiiight. It is government that allows for the dollar to win out over other things. Genius!

    Again, you seem to be unaware that there is such a thing as the black market.

    > And of course those who want to “privatize religion,” endeavor to confine it to the intimate realm, whereas religion, insofar as it is one of the repositories of those traditions and reference groups that enable us to articulate our conceptions of the “good life,” is part and parcel of civil society and therefore one potential source for criticizing and transcending narrowly capitalist construals of “the good.”

    Nice to see a red who doesn’t overtly hate religion for once.

    > The choices, therefore, that one makes in civil society, should not be construed as simply or solely on the model of “economic” ones, as the kosher butcher example makes plain. Markets operate largely on the terrain of civil society, but they are not identical to civil society, even if in our own time the Liberal elision of the distinction has in practice meant that Liberalism tends to instantiate the act of economic choice as the incarnation of the highest good and civil society is virtually indistinguishable from the marketplace.

    So, in conclusion… what, exactly? You don’t make any recommendations, or anything. So this whole post was a big brain fart. Well, thanks for sharing.

  9. Nate says:

    Yikes! Lots of comments. A couple of quick respones.

    Actually I think that the proper analogy is not the kosher butcher who refuses to serve Gentiles (although I’m not sure I have much of a problem with that either) but the Kosher butcher who refuses to sell bacon. That said, I chose the analogy not because it was a perfect fit for the doctor case but because I figured that it would show that everyone agrees that whatever claims the norms of liberalism might have in the market they are different than those that exist in the political sphere.

    Paul: I agree with you that there are lots of other status based relationships within liberal society. My point is not that I dislike all status relationships or that I think that they don’t exist. Rather it is that liberalism doesn’t provide a very good account of them. Frankly, I think that liberalism does a pretty crappy job, for example, making sense of the duties of parents and children. Taking the emancipated and unattached adult as the core case as it were creates lots of problems. Likewise, I am not adverse to the idea of saying that professionals have special duties. I just don’t think that liberalism accounts for those duties particularlly well.

    I also don’t think that those duties are inconsistent with the claims of conscience in particular cases. Lawyers, for example, are generally behaving ethically if they refuse to represent clients that they find reprehensible. Do we think that the feminist attorney who refuses to represent wife-beaters is a threat to the polity? On the other hand, I think that it could be reasonable to require a lawyer to represent a reprehensible client if legal counsel is not otherwise avaiable in say a criminal case.

  10. A.W. says:

    > On the other hand, I think that it could be reasonable to require a lawyer to represent a reprehensible client if legal counsel is not otherwise avaiable in say a criminal case.

    well, it is done, but it is not reasonable. Again, the framers of the 13th amendment were not too keen on coerced service, with the obvious giant exception of the military draft.

  11. Paul Gowder says:

    Howard, we do impose duties on lawyers to represent clients who they find morally objectionable under some circumstances (like when they’re court-appointed), as long as they’re not so repugnant that the lawyer can’t actually properly represent them — see model rule 6.2.

    Nate, I think your last point is the key to all of this. I don’t find the conscience clause particularly gripping, but, if it doesn’t actually deprive patients of treatment, it doesn’t really matter that much. On the other hand, I take it that many who defend conscience clauses would be alarmed if they did actually result in people being unable to get services.

    It’s odd that nobody on either side has really seriously deployed data — rather than just making assertions — to figure out which is the case. (Or have they, and I’ve just missed it?) We can imagine very different worlds — we can imagine a world of small-town pharmacies in religious towns, where some pharmacist’s refusal to provide plan b leads to a rash of unwanted pregnancies, or we can imagine a world where you can just walk down the street to the next Rite-Aid. It would be nice to know which one more resembles our own.

    On the liberalism issue, I started commenting and it kind of blew up, so I’ve expanded it into a separate post on my own blog.

  12. A.J. Sutter says:

    Howard: “market rights” — I can see that I’ve been taking too many gut courses to meet my MCLE requirements. What Constitution are you reading, exactly?

    Nate: a butcher who sells bacon is, by definition, not a kosher butcher. If you want to prohibit kosher butcher shops, mazel tov, but you’ll be interfering with the free exercise rights of lots of other people. (Contrast that with people opposed to abortion on relgious grounds, who can choose not to have an abortion regardless of whether doctors perform that procedure.) Unless you are claiming that kosher food is like peyote?

    I also don’t understand the fundamental premise, namely, that it’s in any way remarkable that, under our Constitution, politics and the market would not be perfectly congruent. Neither Adam Smith nor Richard Posner drafted that document, baruch haShem. The point Patrick makes in his last paragraph is apt.

    Paul also makes a good observation is his blog that it’s “hard to nail down liberalism’s job.” One reason liberalism doesn’t account well for relations between parents and children is that that was never its job (see also next paragraph). Particularly in its contemporary form (at least the late 20th Century to the present), liberalism elevates the atomized individual, and regards relationships only instrumentally. To be “liberal,” you have to ignore the particular qualia of the person you’re dealing with. (A point nicely discussed in an excellent essay by Stefano Zamagni in this edited volume.) That’s not going to make it a good tool for family relationships.

    Moreover, the political and economic aspects of liberalism, especially once we remove it from under the US Constitution, can be seen as two sides of the same coin. Jean-Claude Michéa points out (in a book scheduled to appear in English this summer) that the origins of liberalism were the religious wars of the 17th Century. Commerce was seen as a way to bring about peace, both among and within nations. Family relationships were not a concern, except insofar as religious divisions within families might create suffering again in religious civil wars. So originally there never was a distinction between “economic” and “political” liberalism. In Michéa’s view the historical goal of liberalism is to reduce, or eliminate entirely, the influence of religion in society, and replace it with “the Market” and “the Law”. The paradox that he doesn’t address adequately is why so many of the most ardent proponents of the Market in the US would also like to use the Law to impose religious norms on the population at large.

  13. A.W. says:

    Personally I find it staggering to hear the very same people who praise endlessly lawless decisions like the gay marriage decisions, blythely cheer on the most intrusive invasions of personal freedom. You think that the constitution says you can have sex with whomever you want, but you are not allowed to choose what foods you serve, or to choose not to kill what you consider to be a human being. I jokingly say that the modern mantra of liberalism is “if you are going to put a fag in your mouth, you better damn well be talking about a person and not a cigarette.” And listening to this discussion, that is exactly what is being said.

    In 1851, a federal marshal, a slaveholder and his son, attempted to apprehend an alleged slave in Christiana, Pennsylvania. Now, bear in mind that under the Fugitive Slave Act of 1850, a free black person could be declared a slave in a special hearing, based on nothing more than an affidavit. At the hearing the accused had no right to speak or be represented, and as if all that wasn’t enough, the judge (called a commissioner), was paid by the decision: $10 if he declared the accused to be a slave, and $5 if he declared the accused a free person. As one minister said (paraphrase), “it placed the price of a black man’s freedom at ten dollars, and the price of a white man’s conscience at five.” So, bluntly, any claim that a given person was a slave was highly suspicious. Anyway, escaped slave or not, when they came to capture him his allies started ringing a bell and african americans from miles around came out with their pitchforks, scythes, and so on. The slave catchers were easily outnumbered ten to one.

    Just then, three white quakers happened by, and the marshal attempted to conscript them into helping the slave catchers, as the fugitive slave act also allowed. I don’t know how a quaker says “go to hell,” but that is pretty much what they said. so the marshal decided he didn’t like the odds and bowed out, but the slaveholder and his son tried to make the capture anyway. they were killed, brutally, with farm implements. I hope they were dull.

    This was the most inflamatory incident prior to Harper’s Ferry, and the south was up in arms that people would dare resist such a flagrantly unconstitutional provision with arms (btw, this might be remembered when you ask how the framers of the 14th Amendment felt about the 2nd Amendment). And in the North, they pretty much felt the way I did. Indeed, Thaddeus Stevens one of the most powerful republicans at the time of the framing of the thirteenth amendment defended the quakers and the rioters they managed to catch, when they went to trial. Lucretia Mott, a prominent feminist was present at the trial and did various shows of support. The result? An acquittal despite about as clear a violation of the law as you are likely to see. So, in other words, jury nullification. Because of this incident, the Fugitive Slave Act of 1850 was a dead letter in Pennsylvania.

    That gives you only a hint at how much the people of the north despised the provision of the Fugitive Slave Act that said that you could force a person to do something appalling to his conscience, even in service of an explicit constitutional provision.

    The notion that we have the right to, what? Force a doctor who is a devout pope-following catholic, to perform an abortion? Force a jew to handle pork? The idea that you can not only stop a person from committing illegal acts in the name of their faith, but actually force them to actively violate that faith, is outrageous. We are not talking about a law on drinking or drug use that unintentionally bans a religious practice; we are talking about actively forcing a person to violate the dictates of their conscience.* And that people are calmly debating such a thing shows how much we have become accustomed to the chains we have fastened to ourselves.

    This policy by Obama is an outrage, and any proper supreme court would strike it down in a heartbeat. That our courts invent rights that don’t exist, but then ignore the entire thirteenth amendment, is an outrage.

    ————————–

    * And i should note, that we shouldn’t limit your right to refuse to go along with evil to just those who object for religious reasons, but for any reason of conscience.

  14. A.J. Sutter says:

    Does the right “to refuse to go along with [subjectively perceived] evil” pertain also to members of the military?

    A.W.’s argument is re-framing the discussion in terms of the most basic issues of law vs. morality. If one’s view of morality (including of what’s “evil”) is different from the law’s, then one is still free to act on one’s conscience, and take one’s lumps for it. Dr. M.L. King and other activists who submitted to jail in the name of their beliefs did so, until the law changed. What if your conscience dictates that people of different skin colors should not mix, or that you not hire people who don’t accept Jesus Christ as their Lord and Savior, etc. — this is TV courtroom melodrama stuff. Ironically, the universal conscience-based relativism proposed above is itself a kind of apogee of political liberal individualism (albeit contrary to our Constitutional system). At least that’s consistent with A.W.’s market liberalism.

  15. birtelcom says:

    I wonder if an appropriate legal model to keep in mind is the “common carrier” concept enshrined in both common and statuory law. Service providers such as innkeepers, taxi drivers, railroad companies and telephone companies have long been held to a legal obligation that, once such a provider has chosen to hold itself out as offering such services, it is obliged to offer them to all on a nondiscriminatory basis. Such service providers surrender their right to exercise their conscience to the extent they may not withhold service from, say, abortion clinics and their employees, except of course by choosing to get out of the innkeeping/taxi/railroad/telephone business entirely, which of course providers may generally choose to do at any time. When Fish talks about the obligations that accrue when a professional puts out her or his shingle, I suspect it is something like the widely accepted common carrier model that he has in mind. I do think most people would consider it beyond the appropriate authority of a telephone company to refuse to forward a phone call from a pregnant woman to an abortion clinic on the grounds of conscience.

  16. A.J. Sutter says:

    Birtelcom, that’s a very sensible comment, and much more grounded than the debate about liberalism that was the jumping-off point for this thread IMHO. But it leaves unresolved the question of why some professionals, such as doctors, should be analogized to common carriers, while others, e.g. CPAs and lawyers, are generally not. As some have mentioned above, a court can order a lawyer to represent an accused in a criminal matter; but that might be based on the theory that a lawyer is an officer of the court, not a common carrier theory. I’m not aware of any norm requiring CPAs to take on any client (though there may be rules about how they can dump clients they’ve already taken on).

    Again, I think the connection between the medical profession and dangers to life and limb provides a reasonable basis for the distinction. Similarly, one wouldn’t condone a fireman’s or police officer’s refusal to help someone whose actions were repugnant to the service provider’s conscience. There’s an overlap with the common carrier theory, but the latter may be even broader: you wouldn’t want the phone company to censor your political views, either, even though no threat to life or health is involved.

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