Proof, tendencies, and patterns

[Brian Landsberg]

Eugene's position seems to be that a charge that a line of cases discriminates against a group, such as Native Americans, equals a charge that the judges who decided the cases did so with an invidious discriminatory intent.  But it seems quite plausible, indeed probable, that a group of Christian and Jewish judges of European and African origin find Native American beliefs very remote from their concept of religion.  One need not impute invidious intent to the justices in order to  believe that this lack of a common baseline of understanding of religion is likely to affect decision-making

>>> "Volokh, Eugene" <VOLOKH at MAIL.LAW.UCLA.EDU> 06/07 2:38 PM >>>
        I apologize for further imposing on list members' patience on this
rather long thread, and I will try to shut up after this post.  But it is
hard, because as you can tell this is something I feel strongly about.

        "This" is opposing unsupported accusations of serious misconduct,
whether levied at the Court or at others.  I bristle at such charges because
they deserve to be bristled at.

        My examples of the "ACLU are Communists" and "Jewish moviemakers are
conspiring to defame Italian-Americans" were attempts to demonstrate how
unfair and dangerous these allegations can be.  (Would we say, by the way,
that either of them [absent powerful factual support] "is an interesting
idea, a new perspective on analyzing what is going on - and this could yield
valuable insights even if the thesis is unproven - just looking into it and
trying to use it can be valuable."?)  Steve responds by pointing to
circumstances that make his charge generally plausible -- various American
institutions have cruelly mistreated American Indians in the past, it's
plausible that some religious belief systems will be treated differently
than others -- but the danger with unsupported charges is *precisely* that
they come in an environment where they are at some abstract level plausible.

        Charges that "The National Review is a Communist front" are just
plain silly and thus harmless; charges that "The ACLU is a Communist front"
are much more unfair and damaging precisely because there are some general
reasons to think why it might be plausible (the ACLU did have some
ex-Communists and Communist sympathizers, the ACLU did defend Communists,
the ACLU was generally on the Left).  Likewise with the claim that "Jewish
moviemakers are conspiring to defame Italian-Americans" -- this is not a
laughably implausible argument, because there are movies that portray some
Italian-Americans in a bad light, there are many Jewish moviemakers, and
there is a long history of minority (even discriminated against) ethnic
groups being prejudiced against other minority ethnic groups.

        But these claims, though hardly silly -- who knows, they may even
have been right -- are deeply unfair so long as they are unsupported by any
specific facts.  That's what rightly makes us bristle at them, and that's
what should make us bristle at them.  Explanation of how all proof is
subjective and tied in to psychology doesn't justify such attacks -- only
facts can do that.  That's what I've asked, both as to the "Free exercise
law discriminates against non-Christians" charge, as to the "Free exercise
law discriminates against groups that are distant from the English
Reformation" charge, and as to the "Free exercise law discriminates against
American Indians" charge.  As to none of these have I seen facts, as opposed
to speculations about how it isn't implausible that maybe the Justices
wouldn't like this group or that.  And that just isn't enough to justify the
charges that we've seen, any more than it would be for the charges that I
hypothesized.

        Finally, a specific point:  Often, when such unsubstantiated charges
are made, they have a remarkable way of shifting from one part of the
argument to another (possible precisely because they lack an anchor in fact)
-- being put in the most striking way in one place, and then when people
press for facts, being recast as something much different.  Steve's earliest
post on the American Indian claim posited "the Native American
exception to the free exercise clause (free exercise for everyone but Native
Americans)."  This is a charge that (1) non-American-Indians generally win
free exercise cases, but (2) American Indians generally lose them because
they are American Indians.  Item (1), I pointed out, was just factually
false (though in a later post Steve continued to say that the whole quote,
including this item "is an assertion that has some validity"), and item (2)
was factually unsupported.

        Now Steve says that "Eugene . . . has a hot-button negative reaction
to the assertion that the S. Ct. has been less than fully accommodating to
Native American religions."  Hmm.  When exactly did I say that?  This
recasts the original claim to completely omit points (1) and (2), and merely
make the claim (3) that American Indian religious claimants have not been
"fully accommodated" by the Supreme Court.  You bet they haven't, just like
religious claimants generally have not been "fully accommodated" by the
Supreme Court!  Had Steve made this claim earlier, I would certainly not
have bristled, because it is factually supported (and incidentally not a
charge of serious misconduct on the Court's part).  But that's not the claim
he made.  If one wants to make allegations, great -- one should just be
prepared to support them with facts.  And one should be prepared to support
them -- not something else, but them, at least unless one is willing to
retreat from them and go with that something else.


> -----Original Message-----
> From: Steven D. Jamar [SMTP:sjamar at LAW.HOWARD.EDU]
> Sent: Wednesday, June 07, 2000 6:12 AM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Proof, tendencies, and patterns
>
> I guess I find it curious that Eugene bristles so at the suggestion that
> the Supreme Court values earth religions less than it does god
> religions.  Its ok to scar a sacred mountain, because  - well, why
> exactly?  Because someday someone might want to log it.  Sacred sites
> aren't protected.
>
> It also strikes me as curious given the centuries of genocide practiced
> against Native Americans - with only recent (at best several decades
> old) changes in official U.S. policy - that the those who assert the
> lack of bias ought not be put at least to some level of proving it.
>
> But, the assertion I put in my message as an example of the problem of
> proving things - not as an assertion I think is accurate, or at least
> not fully accurate, btw - is not about anti-Native Americans in general
> - it is about not valuing Native American RELIGIONs the same as more
> familiar western religions.  This assertion is quite different from
> those posited by Eugene.
>
> But that aside, does Eugene really think that psychology can really be
> divorced from proof and persuasion?  If I want to persuade Eugene of
> some position, I will try for as literal a reading of a statute or law
> as possible, I will not mention Native Americans, and I will try to get
> my arguments to fit within the framework of analysis he has set out in
> his many writings.  Eugene values (or appears to value) a certain mode
> of thinking and analysis - and has a hot-button negative reaction to the
> assertion that the S. Ct. has been less than fully accommodating to
> Native American religions.  So, to undertake to prove something to
> Eugene (to persuade him of the truth of the position) would be a
> different undertaking than to prove something to some others on this
> list.
>
> Proof and persuasion in the field of the law are closely linked to each
> other and to shared values and understandings.  But that does not make
> those shared values and understandings correct.   One need not look very
> far to find heinous examples of shared values and understandings to be
> evil incarnate.
>
> Which brings me back around to Michael Newsom's protestant empire thesis
> - it is provocative and not provable, it seems to me, according to the
> standards (loose as they are) of what we as lawyers and academics accept
> as proof.  But if one looks around at the history and development of the
> U.S. and at the treatment of non-Protestants over time, the idea is not
> out-there wacky.  Even Max Weber (incorrectly, I think) saw
> protestantism as the core reason for the rise of the west and the rise
> of capitalism - and it is a short step from Max to Michael's thesis.
>
> I'm not at all convinced of it's explanatory power - it could too easily
> be an empty slogan, distracting from analysis, not aiding it.
>
> But it is an interesting idea, a new perspective on analyzing what is
> going on - and this could yield valuable insights even if the thesis is
> unproven - just looking into it and trying to use it can be valuable.
>
> The U.S. is a Christian country.  Reagan said so in a proclamation.
> Most people in the U.S. claim Christian religious affiliation.  And most
> of those Christians are Protestants.  As a matter of description, it
> seems a short step to say that the U.S. is also a Protestant Empire, or
> part of one, as a matter of description.  What that means for law . . .
> well, I doubt it means much directly, but I suspect it has been fairly
> important in less direct ways.
>
> Too much.
>