The University of Chicago Law School Faculty Blog

More on Civil Unions and Religious Liberty

I have little to add to Doug Laycock's careful response to Geof Stone's forceful post regarding, among other things, Doug's and my support for broader religious-freedom protections than the ones contained in the Illinois proposal that prompted Geof's original op-ed.  As Doug explains, Geof seems to have assimilated our support for religious-liberty exemptions -- support that, in Geof's original op-ed, he said was "reasonable" -- to the views of Herman Talmadge, Theodore Bilbo, etc.  This assimilation is, certainly, rhetorically powerful, but it seems, to me, dissonant with the irenic tone of his initial piece ("It is important to consider this concern carefully and respectfully, for it is no doubt heartfelt and sincere.").

Civil Unions and Religious Liberty: A Response to Stone

Geoff is not his usual careful self in his reply to Rick Garnett and me, and the straw men he flails away at bear little resemblance to what I said.  Or Rick either, but I'll let him speak for himself.

I offered a careful proposal to maximize the civil liberties of all Americans.  Gays and lesbians would be free to marry; religious objectors would generally be free not to personally facilitate those marriages in ways they considered sinful.  In the cases of unavoidable conflict, where a same-sex couple wants or needs a service that is not readily available from another provider, I said that the right to same-sex marriage should prevail over the right to conscientious objection. 

This proposal is not the right of "any tomdickandharry . . . to discriminate . . . at will."  It is not a right to refuse service in a restaurant or a hardware store or a law office or in most other businesses in the economy.  It is a proposed right not to facilitate the marriage in a way sufficiently immediate that the service provider feels personally culpable for his contribution to the marriage.  The examples I offered were wedding planners, marital counselors, and adoption agencies.  And even this right not to faciliate would be forfeit if the conscientious objector were the only wedding planner, marital counselor, or adoption agency reasonably available.

Civil Unions: Protecting Gays, Lesbians, and Religious Objectors

Gays and lesbians seeking liberty and equality in their sexual lives, and religious conservatives seeking liberty in their religious lives, make fundamentally parallel claims on society.  They each assert that some aspects of human identity are so fundamental that they deserve legal protection from all but the most important regulation.  From a civil liberties perspective, they should be natural allies instead of bitter opponents.  The one example where this shared interest has borne practical fruit is the Equal Access Act, which has protects the right of student organizations to meet in public secondary schools.  The principal beneficiaries --the two groups that high schools most often seek to exclude -- have been Christian prayer clubs and gay rights clubs.

In other contexts, each side has tended to make the Puritan mistake, seeking liberty for themselves and regulation for their opponents.  The conservative religious community has been the most obvious about this, criminalizing same-sex relationships when they had the political strength to do so, and now resisting same-sex marriage where they still have the political strength to do that.  The gay rights side has responded not only by opposing conservative religious movements politically, but often by opposing their claims to religious liberty as well.  Marc Stern has gathered many examples of gays litigating against religious liberty claims in his chapter of the book I helped edit, Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony M. Picarello, & Robin Fretwell Wilson, eds., 2008). 

Of course it does not violate anyone's religious liberty for a state to enact same-sex marriage, let alone civil unions.  Nor does it violate anyone's liberty for religious conservatives to make what ever arguments they choose to offer against such legislation.  We have separation of church and state, not separation of government from voters; religious citizens have the same right to speak and vote that the rest of us have.  If bans on same-sex marriage are unconstitutional, it is because of the Equal Protection Clause or the Due Process Clause or the Ninth Amendment -- not because of anything in the Religion Clauses.

[Civil Unions] Same-Sex Marriage, Civil Unions, and Religious Liberty

It is a pleasure to be back at the University of Chicago Law School Faculty Blog.  Thanks very much to Geof for the opportunity to discuss his recent opinion piece on the proposed "Religious Freedom Protection and Civil Union Act." 

So, "[h]ow" -- in Geof's words -- "does the legal recognition of civil unions threaten the religious liberty of those who oppose the legislation?" 

I agree with Geof that "[i]t is not a violation of religious liberty for the state not to impose one group's religious beliefs on other citizens who do not share them."  That said, I believe we can and should distinguish between this statement and another, different one, namely, that it violates, or even implicates, the "separation of church and state" for religious believers (or anyone else) to support laws that, in their religiously-shaped view, tend to promote the common good.  I am not convinced that clear lines exist between "moral" arguments (like, say, Dr. King's) and "religious" arguments.  In any event, if legal recognition of civil unions or same-sex marriages is constitutionally (or morally) required, it is not, it seems to me, because many who oppose such recognition have "religious" reasons for doing so.  In my view, the "separation of church and state" -- a crucial dimension of religious freedom -- has to do with the relationships between and among religious institutions and authorities and political ones; it does not have to do with the sources of citizens' views and policy preferences. 

IP: Social and Cultural Theory (Graeme Dinwoodie)

It's hard coming late to this conversation, because so many complex issues have already been raised.  But, if it's not too selective, I want to focus on just two: the importance of consciously separating descriptive and prescriptive questions as we broaden the debate in the ways that Madhavi suggests; and, building upon what Rochelle Dreyfuss has mentioned about our forthcoming book, I want to emphasize the international dimension to the dynamic on which Madhavi has focused.

In her original post, Madhavi suggests that her critique of the "narrow" focus of current IP thinking is both descriptive and prescriptive.  The ensuing discussion has covered both descriptive and prescriptive questions.  But there are dangers in eliding this distinction.  (I think we all do it now and then, but it seems especially easy to do when engaging in economic analysis in IP).  We see this, for example, in trademark law.  If one goes back 50 years, the functions of trademark law were expressed in relatively uncontested terms: ensuring consumers get what they want, and cracking down on "pirates and cheats".  This is broad language, allowing the injection of a range of values that cut either in favor of or against broad trademark protection; in fact, if we now look at the mid-twentieth century scope of protection, it looks relatively confined.  But in the last thirty years that justification for trademark protection was reformulated in the language of law and economics, and in particular in the language of search costs (including by the Supreme Court).  Search costs surely are an important part of the description of how trademarks function, and also one reason why prescriptively we offer them legal protection.  But it has too quickly become an all-encompassing prescriptive guide: if certain conduct increases search costs, it should be prohibited; conduct that doesn't clearly increase search costs should be of no concern to trademark law.  And there is a tremendous attractiveness to this: we don't have to work out who are "pirates" and "cheats" and we don't have to consider "what consumers want".  But maybe we need to struggle more with those questions, which don't lend themselves so readily to economic analysis.

IP: Social and Cultural Theory (Rob Merges)

It has been great fun reading, thinking about, and responding to these posts. My thanks to Madhavi and all the contributors, who have offered some truly stimulating ideas and comments.

I want in this, my final post, to pick up on a thread first developed by Madhavi, and periodically referenced by other contributors: the role of IP in what is sometimes called "the development agenda." Now, "development," like "culture," is wide-ranging yet deeply ambiguous. So let me clarify a bit how I understand the term.

At the most basic level, development is about economics. It is about providing food and meeting the other basic needs of the world's poorest people. At this level, IP policy has a small but important role. (The alleviation of suffering, even if only modestly, is inherently important.) For example, when it can be shown that IP rights are getting in the way of basic sustenance, those rights have to give way. If it is clear, for example, that patents on a certain foodstuff are interfering with sustenance in some demonstrable way, the patents must not be enforced. This dictate of distributive justice is actually built into any reasonable theory of property rights -- any theory that aspires to hold a place in a liberal world society. It is for example present in the foundations of John Locke's theory of property. His charity proviso actually says not just that property claims must yield in the face of abject need; it says that the poor in these circumstances actually have a claim on the title to some portion of the property held by the well-off. Destitute status is not, in other words, a condition outside the institution of property rights that modifies the force of those rights. It is built into the fabric of the rights themselves.

IP: Social and Cultural Theory - Culture Metrics (Mario Biagioli)

I have a couple of specific comments on Rob's notion of "professional creatives," and a more general one on Madhavi's comprehensive notion of "culture.

Given that the parameters of evaluation of the quality of cultural artifacts are notoriously difficult to define (and probably impossible to fix in any non-local sense), I'm a bit surprised by Rob's assumption that there are people -- his "professional creatives" -- who seem naturally endowed with (or professionally selected for) a capacity to deliver "products that become cultural icons and shared touchstones." Professional creatives are those who can produce the cultural canon.

My first point is that Rob's narrative seems to internalize and reproduce the logic of IP that Madhavi is trying to question.  Better than traditional authors, professional creatives are endowed not only with a unique personal expression but also a high-quality one.  They produce work that is not only distinct, but also trend- and canon-setting.  The fact that their work may be the result of a lot of schooling, observing, and copying others is not foregrounded in this picture.  He mentions, instead, the kind of environment professional creatives need after having given birth to their works:  "large-scale organizations often needed to assemble their individual contributions into sophisticated, refined and polished form").  Rob may have compressed a longer and more complex narrative down to a few lines to make it fit the blog format, thus making it less nuanced than it really is.  Still, in the form presented here, social entities and resources are mentioned only as part of the process through which the work is refined after being conceived rather than of the process leading to its conception.  When it comes to the work of the professional creatives, the traditional notion of authorship based on individual personal expression is left, it seems, unquestioned.

IP: Social and Cultural Theory (Rob Merges)

I want to respond to some of Madhavi's points about culture. Then, even though it is a topic that is not well suited to the blog format, I want to say a few quick things about utilitarian vs. rights-based views of IP.

Madhavi is right that my thoughts on culture include a greater concern for high quality content, produced by what I call "professional creatives."  She seems to imply, though, that I understand these high-quality products to be coextensive with "culture". She says I view culture as "emerging from a professional class that has refined taste (and presumably talent)," while Madhavi herself "offer[s] a more democratic view of culture." This is not quite accurate.

IP: Social and Cultural Theory (Rochelle Dreyfuss)

I am very much looking forward to Professor Sunder's book.  I agree that it's high time to think more systematically about crafting intellectual property law in a manner that takes account of other values.  That is true not only for domestic law, but also at the international level.  The TRIPS Agreement, as part of a trade pact, treats knowledge "products" as commodities.  That makes them easy to trade, but as Graeme Dinwoode and I have suggested in a series of articles (and will treat at greater length in our forthcoming book, Achieving Balance in International Intellectual Property, to be published by Oxford University Press), the trade perspective tends to lose sight of such matters as cultural development, changes in the creative environment, and human rights, including the right to health.  As Madhavi suggests, current law also fails to deal effectively with collaborative production and open innovation.  Indeed, I've written a couple of articles on the collaboration issue in science.

However, like other bloggers, I am somewhat puzzled by the dichotomies that are drawn here.  Perhaps it's a matter of degree, or perhaps there are a few scholars who think about IP as uni-dimensionally as Madhavi suggests.  But it's hard to imagine there are very many.  IP hardliners (protectionists) in both patent and copyright law regularly confront non-economic incentives.  On the science side, it's impossible to miss the impact of university research on technological development.  Yet, in that milieu, the norms at play are ones that Madhavi would likely not classify as economic.  More generally, it is so difficult to fully appropriate economic benefits in basic science that--as Scott Stern puts it--scientists pay to be scientists.  Paradoxically, some of the copyright high protectionists focus even more heavily on non-economic interests.  They tend to favor moral rights--rights that inhibit economic exploitation because they protect other values, such as the author's personality and the integrity of her contribution to the culture.

IP: Social and Cultural Theory - Does Economics Describe or Perform IP? (Mario Biagioli)

Madhavi Sunder's framing questions are pitching this discussion quite high -- appropriately so, given what's at stake.  As my grasp of the debate is not, unfortunately, as "panoptical" as hers or Prof Merges', I can only try to contribute by bringing in a more limited, different perspective.

Coming to IP not through a formal training in law but rather through debates over scientific authorship and the history of patenting by scientists, I am not directly invested in either supporting or critiquing economic conceptualizations of IP.  From my disciplinary point of view, that so much discourse about IP is framed by the logic and assumption of neoclassical economics does not look like a "natural" fact, but rather the result of some kind of history. Still, that does not imply that economics would necessarily provide bad or unacceptably narrow conceptualizations of IP.  While I find no reason to attribute them the status of a "master narrative," different economic perspectives on IP can function as tools that, depending on who uses them and how, can produce results ranging from illuminating, sharp, and thought-provoking to flat and predictable as only ideological scholarship can be.  

I'd say that the way one views the relationship between economics and IP depends on how "scientific" one takes economics to be.  For instance, in my neck of the disciplinary woods, scholars like MacKenzie, Callon, Latour, and Lepinay have argued, in different ways, that economics does not simply describe the dynamics of the economy (the way a science would describe its object).  It rather develops models that, once adopted by powerful actors like the finance industry, start functioning more like prescriptions than descriptions of the markets' behavior. "Economics perform the economy," says MacKenzie.  While these perspectives acknowledge the powerful effects of economics (as they argue that economics is part of the construction of the economy), they also take away from it its status of 'science' and replace it with that of "builder" or "performer".  

I wonder whether we could apply some of these perspectives to the relationship between economics and IP.  One could argue, for instance, that while the discourse of economics has indeed shaped much of the doctrinal and policy directions in which IP has been articulated, it has not done so because it was able to model and describe the motivations and behavior of authors and inventors in a "scientific" manner, but rather because that kind of modeling has been used and turned into practice by powerful political and corporate IP stakeholders (and also, perhaps, by individual authors who, with so much economic imagery swirling around in media and public discourse, have come to conceive of their own creative work as a process of "maximization of intellectual property"). MacKenzie has shown that the Black-Scholes-Merton formula for pricing options ended up structuring (rather than just describing) the behavior of securities markets.  Maybe the economics talk about IP has performed the same kind of "self fulfilling prophecy".  That does not men that that kind of talk is either right or wrong.  It is simply constitutive.  Which also means that it could be constituted differently -- even very differently.