In Loving Memory of Doris Suzanne (Dumais) Gousy, 1935-2014, My Mother
Saturday morning, August 9, around 1:00, after around two and a half years fighting off the physical effects of acute myeloid leukemia, my mom finally passed away. Several hours before this, having spent my mom's last uncomfortable waking hours with her in a hospital intensive care unit, my dad, my brothers, and I had decided that, consistent with my mom's wishes and the fact that medical professionals at the hospital had exhausted every non-aggressive treatment to keep her alive, we would allow the hospital staff to make my mom as comfortable as possible and allow her to pass. Neither I nor my dad were there when she finally passed - it had been a long day for all of us and my dad was very tired; we said goodbye to my mom and left with my brothers Norm and Bob with the hope that she might still be there in the morning. She passed a few minutes after we left the room, accompanied by my brother Mike, his wife Denise, and Norm's wife Michelle. I could feel some degree of guilt for leaving, but, under the circumstances, I think my mom would understand and, in any case, the important thing was that her time of suffering was over. In any case, before I left, I brushed back the hair on her forehead, told her that we loved her and that everything was going to be alright.
This post is, in part, a personal eulogy for my mom. It is also a means for me to thoughtfully mourn her passing. Lastly, it is a space for me to recount a good many memories of my mom and our relationship and commend them to the timelessness and spacelessness of the Internet in the hope that, if someday her memory starts to fade in my mind, I have a record of memories that were meaningful to me that I can return to and, maybe if I ever have children of my own someday, to share with children who never met their Mémère. Beyond that, perhaps, it can be a therapeutic moment for me, to reflect on all of the ways that I wish I had acted differently with my mom, to express my regrets at some of the distances that I created before she was gone, to explain myself, to learn to be a better person in the rest of the time that I have with my family and that I reside in the world.
My mom was born in a little town in Québec on the south shore of the Fleuve St. Laurent, St. Pacôme-de-Kamouraska, on a hillside in the shadow of a metal cross (although it may have been wooden when my mom was born) overlooking the little tributary Rivière-Ouelle where our Lévesque, Bérubé, and Miville ancestors from Normandie first settled in the 1670s with the Seigneur Deschamps. Her dad, my Pépère (grandpa) Dumais, was a son of the town's former mayor who hated politics and politicians - he was a proud and simple workman in the middle of the Great Depression when it was hard to make a decent living anywhere. Mom was the oldest of four siblings. In 1941, Pépère took his family from St. Pacôme to Windsor, Ontario to work at the war production plants in Detroit. The English-speaking folks in Windsor were less than kind to the migrant Québécois workforce, so they only stayed a couple of years. They moved back to Québec in 1943, to Drummondville in the center of the province, where they bought a little house in the neighborhood/paroise of St. Simon. From what my mom used to tell me, they were always fairly poor. Her mom, my Mémère (grandma) Dumais, had depressions so severe that she had to go away for months at a time to seek medical care, leaving their four children with my Pépère who, in turn, had to leave town part of the year to do lumbering up in the Laurentides. Mom, Aunt Lisa, Uncle Pat, and Uncle Jean-Louis spent a short time growing up in an orphanage until Pépère came back and Mémère was well enough to tend to the household. It seemed that they, like most Québécois families of modest means, did a good job of getting by without very much - they always had a little vegetable garden behind the house and put it to good use, and they took in friends and relatives as borders from time to time.
My mom finished school in town and went off to the école normale of St. Léonard run by the Sisters of the Assumption to learn to be a school teacher in 1952. She made a number of friends there that she kept in touch with the rest of her life, like Jeannine who we would always visit in Drummondville and Angèle in the Montréal suburb of Longeuil who would always treat us to a feast whenever we would stop to see her and her husband Réjean at their little house where, standing on the front sidewalk, you get a beautiful view of Olympic Stadium in Hochelaga across the river. When she finished normal school in 1954, she found an assignment in Drummondville teaching a class of first grade boys. It was before the "Quiet" Revolution (la révolution tranquille) of Prime Minister Jean Lesage and the Liberal Party of Québec - all the schools were run by some order or another of the Catholic Church and, at least in the lower grades, it was gender segregated. I remember the last time that I went to the Mondiale des cultures festival in Drummondville with my folks that my mom somehow ran into one of the boys that she had had as a student back then. It seems that she was well liked by both her students and by the sisters who ran the school.
At the time, Pépère had made his way down to the states where he had found very lucrative work as a form maker for the construction of route 91 in Eisenhower's interstate highway system. It took him down to the Springfield area, where a Québécois diaspora had built up since the 1890s. He saved up enough money to pay off the mortgage on the house in Drummondville, but the jobs were so good for construction workers down in Massachusetts that he decided to sell the property and move the family down. Mom probably could have stayed in Drummondville if she wanted - she was twenty and had a steady teaching job, but she decided to go with the family. Drummondville, before the Quiet revolution was a sleepy little crossroads town without much going on (now it is a bustling little crossroad on the TransCanada highway with lots of foreign investment, especially from Asia, in assembly plants targeting North American markets). By contrast, Springfield was bustling back in the fall of 1955 when they all moved south. They rented a little apartment in the Brightwood neighborhood off Jefferson Ave. in the North End, nowadays a virtual San Juan, Puerto Rico but at the time the Little Québec of Springfield. All of the houses were big, old Victorian era homes built when Brightwood was a streetcar suburb for Anglo-Protestant Yankee New Englanders working downtown, subdivided into multi-family houses, in some cases, by previous generations of Québécois migrants living out their American dream of owning property with an apartment on the first floor for themselves and a rental for some hardworking countrymen upstairs. All the neighbors were from somewhere in Québec, many from around Drummondville, from Kamouraska or Bellechasse, but many more from the Richelieu Valley, Ste. Hyacinthe, and other places nearer to Montréal. The neighborhood had lots of shops for the locals, there was the Jefferson theater where you could spend all afternoon watching movies for a quarter, and there were buses downtown where you could shop at Forbes & Wallace department store or, if you were a little more affluent, at Steiger's. And there were lots of factories and workplaces looking for help, from little garment shops to big machine tool works like the American Bosch complex straddling the Springfield-Chicopee line.
Neither mom nor Aunt Lisa spoke very much English, but they pretty quickly found jobs in some of the workplaces that accumulated young, mostly female Québécois laborers - they started out sewing clothes for dolls but the bosses were horrible, so they moved on to sewing baby clothes for Carter. Mom spent a number of months working for Carter before someone suggested to her that, with her education, she should try to find an office job somewhere. If I remember it right, she took some night school typing classes, worked hard on her English, and took an exam to try to find a job with Mass. Mutual, one of the prize jobs for young women without a college education in Springfield at the time. Surprisingly, she passed and started doing filing work at one of the departments in the main Mass. Mutual campus on State Street, I think, in late 1957. At the time, she thought she might be on a career path with the company.
Meanwhile, back in Little Québec, Mémère was busy trying to find a decent young man from the neighborhood for her daughter. It turned out that she had a friend from Drummondville who was living next door to these folks originally from Granby around Montréal, my Pépère and Mémère Gousy, whose oldest son, my dad, was off serving in the Army down in DC. Mémère Gousy sent my dad a photo of mom and he apparently decided that it would be worthwhile taking some time off from keeping track of potential subversives in the Counterintelligence Corp to come up to Springfield to meet this girl. Several months of dating, my dad's departure from the Army and permanent return to Springfield, and his polite efforts to deal with Mémère Dumais' cooking when he visited (my dad has an extremely finicky appetite!) led to their eventual engagement and their marriage in September of 1961. A couple of months before they married, they bought the house that my brothers and I grew up in in West Springfield, at the top of Tubbs' Hill (my Pépère Gousy did his best to convince his son of the merits of moving to somewhere on high ground after the Great Flood of the Connecticut River in 1936 innundated my Pépère's home in Chicopee when my dad was less than a year old). Within a few months of getting married, mom was pregnant with my oldest brother, Mike. She worked at Mass. Mutual until a few months before she gave birth and never returned. Within the next five year, they had three sons. I didn't come along until 1974, when my youngest brother, Norm, was eight. Mom finally got back into the labor force when I was about eight - she started baking in the school cafeteria at St. Thomas, where my brothers and I all went to primary school. It gave her a few bucks of spending money a week and still enabled her to get home before my brothers and I to prepare dinner and do other housework.
Mom lost her dad around 1981 to heart problems - he was a lifelong pipe smoker and the rich traditional Québécois diet that he and my Mémère consumed was quite tasty but not very kind on the arteries of either of them. The loss was very hard on my mom. She was very close to her dad. Her parents had bought a big house around the corner and down Boulevard Street from my folks (within walking distance), and Pépère had converted it into a two-family, with my Uncle Pat, his wife, my late Aunt Helen, and Helen's son, my cousin Doug living upstairs when I was young. Pépère was over at the house all the time when my brothers were young, and he did a lot of work on my folk's place. He extended the kitchen, produced all of the cabinets and the kitchen table from scratch in his little workshop at home, and created a downstairs bathroom. Mom didn't drive until I was about eight or nine, so Pépère would drive her wherever she needed to go during the day in his big green '67 Oldsmobile Cutlass, a car that I both remember riding in and, after Pépère had passed, collecting dust and rust up in Windsor, Mass. by Pittsfield at my Uncle Jean-Louis and Aunt Ellen's continuous "a work in progress" self-constructed house in the Berkshire Hills (at least it was incomplete while I was growing up; I think it has been pretty well completed for some years now, however - I don't go up to see them enough!). When I was very young, I spent a lot of time at Pépère and Mémère Dumais' house - Mémère would take care of me a lot while mom and Pépère went places that it just wouldn't be convenient to take a rambunctious youngster to. After Pépère passed away, mom not only lost her ride all over the area, she lost a dear daytime companion. I remember the way mom would talk about her dad, his love of life, the way he would probably be enthralled with all the fix it innovations at Home Depot(!), and how much she relied on him, both when she was young back in Québec and even after she was married and keeping the house, years later.
Mom's relationship with Mémère was different - she loved her mom, but Mémère always had her peculiarities. She suffered from depressions that were debilitating to her and to the whole family. After Pépère's death, new problems arose. Mémère had a number of small strokes that progressively robbed her of her eyesight. I remember when I was young that Mémère used to have a beautifully manicured back yard, with a little multi-tier water fountain that I used to play around. She grew tomatos and cucumbers and even potatoes, and maintained flowers stretching up the front walkway into the back yard bordering the vegetable garden. After she started going blind, everything deteriorated. Mom and her siblings deliberated and decided that it would be best if mom could take Mémère into our home. Uncle Pat, a construction contractor like his dad, built us an addition onto the back of the house with a bedroom upstairs for Mémère and a sunroom downstairs for us to enjoy our little back yard from. So Mémère moved in around 1985 or '86. Her eyesight continued to deteriorate until she was completely blind, and she also went largely deaf and continued to go through her recurring depressions. My mom might have looked at it as her labor of love to her mom, who, despite everything, worked hard to give her children a good life coming out of the Great Depression. In hindsight, I think it was at least a significant share of my mom's purgatory, especially toward the end when she started to argue with her siblings about what was the best course of action for their mother as her health deteriorated. In the last year or so of her life, Mémère began to show legitimate signs of dementia, if not full-blown Alzheimer's disease. She died around 1992, ironically enough, around almost exactly the same time my dad lost his mom. The passing of my two Mémères (and, as such, the loss of all connections to their generation - my Pépère Gousy had passed away before I was born) was, in some respect as I remember it, the closure of a somewhat acromonious period between sibling in two families, intersecting with my parents.
Through this period, I grew up and my brothers graduated from college and, for Mike, optometry school, found jobs, moved out, got married, and started families of their own. And through it all, my dad continued to be the stable breadwinner for the house. He worked incredible quantities of overtime as a letter carrier for the U.S. Postal Service, where he started around 1962 and worked over 35 years. (I want to point out, at this point, that, even for the fact that I hold a bachelor's degree in history, I am terrible with dates, especially for events within my family! If everything in here seems to overlap or bleed together, it is because I remember the events much more strongly than when each of them actually happened - what matters is how everything relates to everything else. In this sense, I might not be able to tell you what year the Northern Sung dynasty in China ended, but I know what significance the dynasty had in the development of Neo-Confucianism in China and its temporal relationship to the rise of the Jurched Jin and Mongolian Yuan dynasties that replaced it.) In addition to the Post Office, he worked part of the year for many years for the City of Springfield, going door to door after work in the poorest and most decrepit neighborhoods to collect census information, where police officers doing census work in their spare time did not dare knock on doors. Every name was worth fifty-cents, and, in neighborhoods with many large Puerto Rican and immigrant families, he could make a lot of money on the side of his day job (and learn little bits of Spanish, like the word for dog (perro) and date of birth (fecha de nacimiento)). Among the postal carriers delivering in Springfield, my dad was a consommate professional and dedicated to doing the best that he could at his job, delivering the mail like clockwork to each address on his route everyday and never, ever cutting across people's lawns to do it! He would always get through his route inside the hours that the Post Office allotted to him and often "pivot," helping other carriers to finish their routes. And he trained an innumerable number of other carriers other the years, many of whom can still recount the discipline that he instilled in them in doing their jobs.
All of that hard work, to keep bread on the table, put four children through parochial school and then four years of college, and to save up for the unanticipated future of himself and his dear wife, took a terrible toll on my dad. Around 1998, dad hit a wall - he had a major depression. The man who I remember working like a religious zealot behind the cause of "neither wind nor rain, nor..." for my entire childhood was out for over a month and, at mom's behest, sought psychiatric help. As I remember it, mom was beside herself. She had spent so many years watching her mom go through depressions, now she was watching her husband face the same fate. When dad finally got back to work, he lasted two more months before finally deciding he had reached the end. He retired and settled down to figuring what he was going to do with himself, in the company of his beloved wife, for the rest of his life if he wasn't working.
For the next decade or so, mom and dad did a lot of things together. They took vacations here and there. For their fortieth anniversary (the first week of September, 2001), we bought them airline tickets to Paris, but, after 9/11, they decided that it might be safer to vacation at home to New Orleans, ironically right before Katrina. In the end, I think they finally cashed in those tickets for a trip down the West Coast. They spent their winters for six or seven years down at Cape Canaveral (Indian Harbor Beach) in Florida, where my mom's sister, Aunt Lisa, and her husband Uncle Bernie, a retired Air Force full-bird colonel and former base controller at Patrick AFB, lived. Mom got to spend all kinds of time with her sister and their family. They spent lots of time on the beach. My dad, who walked religiously from his Post Office days, would walk the causeway over the Indian River near Melborne. He would come home sporting a lovely brown hew from the sun! For many of those years, I passed many hours watching the house and watering mom's houseplants, even though, for most of those years, I was happily settled up in Northampton, busily taking classes for grad school or writing my dissertation prospectus. They started off taking two months down in Florida. It eventually became just one month, largely because the price of their condo went up. Then they gave up their condo and rented one from my cousin, Caroline, who lived in Arizona but maintained the place so she could be closer to her folks. Then, in 2011, they stopped going altogether - they couldn't find a reasonably priced place where they could stay when they wanted to go, and they missed the prospect of celebrating Easter with the family in Massachusetts. I felt sad - it seemed like my parents had submitted to permanent grounding at home. I did not know what might be coming next though.
The other "big" thing in the lives of my mom and dad in this period was, ironically enough, candlepin bowling! Mom started bowling around 1997 with some older friends of hers at the Springfield Plaza on Liberty Street, where my dad delivered the mail, before dad retired. After he retired, dad joined in. It got really serious then. They joined a league, and won several championships. For a few years, dad was the league president, largely because he enjoyed keeping statistics (much more so than his son who was busy getting confused with statistical regressions in econometrics classes at UMASS at the time!) and he didn't mind dealing with the business end with the bowling alley. Like everything else, things change over time, however, quite often not for the better. The bowling alley at the Plaza closed up, I think in 2011 - candlepin bowling was dying out even in Western New England, one of its homes. Mom and dad moved to a candlepin alley in Agawam, but many of the other people in their league at the Plaza just dropped out - most them were in the upper eighties and the change was probably too much for them anyway. They found new people and kept going.
In January 2012, I found out, I remember by accident, the bad news about my mom. She had been really tired over the holidays and went to her doctor, who told her that she was suffering from anemia and sent her to an oncologist, who told her that it was acute myeloid leukemia (AML). She told me that the oncologist had recommended to her that she go to the Dana Farber clinic in Boston. The first thing that came to my mind and out of my mouth was, "I'll drive you and dad there." And so, I ventured with my parents to a world class center of cancer research, with the certain thought in the back of my mind that this was, for all intents and purposes, my mom's death sentence. It might not be soon, but barring some extreme measures, not possible on a woman her age or, at least, not recommended for anyone with high blood pressure and a family history of heart disease, she was eventually going to die from complications from leukemia, and I was going to lose one of my parents.
In hindsight, mom fought leukemia as hard as anyone in her situation possibly could. She went through her first regime of chemo-therapy, one that her oncologist told her normally works for only around six months for most patients, and strung the effects of the disease out for over fifteen months. Toward the end, however, it seemed as though she was living and working over at the hospital, getting blood transfusions, platelets, and chemo-therapy shots that were supposed to reduce the frequency with which she would need transfusions and platelets. There is only so much that you can do with a disease like AML and mom gave the disease a good fight.
In the months before the end, I would drop by my folks' house in the morning off the bus from Northampton before I went to work at the store (around the corner from their house, which was always convenient during high school and probably as much a reason for why I've stayed there for the last twenty-five years as any other!). I stopped last Wednesday to use the bathroom and see what mom was up to for the day - dad goes to mass at St. Thomas every morning, so I knew he wouldn't be around. When I walked in, it looked like the house was empty. I went upstairs and saw that mom and dad's bed was already made, but I did not hear mom until I left the bathroom. She was in her chair in her bedroom, still in her pajamas. She had been having mouth sores of late that were causing her a lot of pain and she told me that dad was going to take her to the hospital to tend to them when he got back. I sort of shrugged this off - my mom practically lived at Mercy Hospital since she started chemo. I said that I'd see her later and wished her the best with her mouth sores. She asked me to keep her in my prayers(!). In hindsight, it is really hard to conceive that you are seeing your mom in her home for the last time that you will ever see her there! I wish I had known, but that is, succinctly, impossible. Ainsi soit-il.
Tuesday, August 12, 2014
Sunday, August 3, 2014
On Burwell v. Hobby Lobby Stores Inc. et al IV
The Free Exercise Privileges of Capitalist Workers?
In the previous section of this post, I argued that Constitutional free speech privileges are virtually non-existent for capitalist workers and that, given the particular spatially extensive nature of the contemporary, electronic-age workplace, the denial of free speech privileges to capitalist workers cannot be meaningfully restricted to the workplace. If in earlier generations free speech could be compartmentalized outside of the workplace to enable employees to enjoy a private space as free citizens, capable of enjoying the liberties bestowed by the Founders through the Bill of Rights, in the era of Facebook, Twitter, and Linkedin, the capacity of a capitalist employer to exercise effective surveillance against the political speech of employees and to sanction such activities through employment actions (e.g. demotion, dismissal), even when they do not actively pursue associations with the firm or its activities, can produce a pervasive chilling effect on the political activities of capitalist employees. In a certain sense, the evolving corpus of adjudication and statutory enactments of labor market institutions since the heyday of industrial organization in the late 1930s seems to have supported a broader constriction of political liberties for workers in reaction to the self assertion of rights to organize on behalf of the collective self-interests of capitalist employees.
To some degree, the case of workplace free exercise privileges for capitalist employees under the First Amendment, augmented by the Religious Freedom Restoration Act (RFRA), poses even more deeply problematic issues, especially when tied to the institution of at-will employment. At this point, we need to back track into judicial precedents that we have already traversed. Emphatically, Adell Sherbert was dismissed from her capitalist employer for freely exercising her religious belief that working on the seventh day of the week constituted a profanity against God. Likewise, the respondents in the Smith decision were dismissed by their employers for following religious preceipts regarding the sacremental/ritualistic use of peyote. Neither appeal that reached the U.S. Supreme Court actually concerned, however, these dismissals. Rather, each ruling concerned the denial of unemployment compensation benefits by state-level authorities on the principle that the employees in question were dismissed by employers with cause.
As such, each application of free exercise privileges arises from governmental actions deriving from the outcomes of labor market practices by capitalist employers. At most, we could argue that capitalist employees potentially enjoy free exercise privileges by means of a public rectification - capitalist employers can always deny employees the full enjoyment of their free exercise privileges but, when they do so by dismissing employees who insist on practicing particular articles of their faith against the demands of the firm, they may encounter higher premiums for unemployment compensation insurance as state compensatory authorities recognize the validity of claims by employees that they were dismissed without cause. Otherwise, we have to recognize that there is no Constitutional foundation for issuing claims against capitalist employers for violating the free exercise privileges of employees. Moreover, in the aftermath of the Supreme Court decision in City of Boerne, enhanced scrutiny of free exercise claims issued against state and local governmental actions under the terms of RFRA no longer applies. As a consequence, assuming the Sherbert test on the Constitutionality of state and local laws/policies of general applicability no longer applies (something that might overstate the scale of the problem facing practitioners of minority religious traditions - the decision of the Supreme Court in Smith was premised on the limited grounds that use of peyote involved a criminally sanctioned violation of drug laws), then employees dismissed from a capitalist employer for reasons emanating from the free exercise of religion might again be denied unemployment compensation on the grounds that they were dismissed with cause. Regardless of the current terms for adjudication of free exercise claims emanating from a request for unemployment compensation, for employees, the capitalist workplace is a space within which both freedom of speech and freedom of religion go to die.
In this regard, when Justice Alito, in the majority opinion of the Court in the Hobby Lobby case, includes "employees" in his argument that "(a)n established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another" and, further, that "(w)hen rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people (U.S. Supreme Court, Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores Inc., et al., No. 13-354 (October 2013 Term), p 18 (emphasis in original), at: http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf)," he engages in a cynical overstatement of the case for extending free exercise privileges to the owners and officers of privately-held corporations. Pointedly, it is one thing to argue that the owners of a capitalist enterprise, under any given legal organizational form, maintain their individual privileges to act in accordance with their religious principles, except insofar as a compelling governmental interest compells the state to curtail such privileges. It is another thing entirely to imply, offhandedly, that such a judicial proceeding somehow will expand or reinforce the free exercise privileges of employees, as stakeholders in the same enterprise from which they likewise derive their livelihoods. The latter do not possess and have never been entitled to claim free exercise privileges against the actions of capitalist employers. Justice Alito states the actual terms of the case more honestly in the last sentence of the paragraph from which I derived the previous quotes. "And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies (Ibid, p 18 (emphasis mine))."
The Boundaries of Religious Liberty in a Rights Regime
In proceeding to elaborate the demands of religious liberty in a liberal "rights" framework, we face two distinct questions. First, what constitutes the subject of religious belief? Second, what limitations are imposed on the lived experience of religious belief by social existence? The questions here are too large to ever be adequately answered by this little section of a blog post. My response seeks to be suggestive of the potential expansiveness of free conscientious thought, commitment, and practice.
Succinctly, in coming to terms with what religion is, what religion does, and what religion can command as integral to its practice, I reject the notion that we can produce an exhaustive list of faith traditions and denominations that definitively qualify as religion. Religion is what the faithful say it is. The point that I am attempting to make here, in the broader context of an inquiry into the free exercise privileges of capitalist employees, is that it is not possible to qualify "sincere and substantiated" structures of belief in order to determine whether such structures merit protection by the First Amendment without imposing some arbitrary definitions on what rightly constitutes religious belief for the purposes of adjudication. Religion, or, more broadly, metaphysical speculation and faith in immateriality, underlies any and every systematic understanding of material existence, Marxism included. The "ultimate given" within a systemic theorization of material existence might be constituted by a belief in the incapacity of either introspective reasoning or empirical sensory observation and testing to unravel the complexity (overdetermination) of any particular material process within the universe, but such a belief is an article of faith, however minimalistic in its terms.
Allowing a wide berth to what actually constitutes religious faith, I think that there are some basic analytical terms that we can articulate in order to structure our understanding of religious/metaphysical thinking. Namely, every religious/metaphysical tradition lives out a particular set of relationships between the believer, the spiritual/metaphysical object of his faith/devotion, and the universe within which the believer is situated in relation to the myriad processes of material existence. I regard these conditions as a basic starting point for evaluating religion, even insofar as objects of faith and devotion lack a defined personality or a sense of divinity/immortality. At a basic level, most Buddhist traditions (though, perhaps, not Amida/Pure Land Buddhism), for example, lack the worship of a personal God, but situate believers toward a body of faith on the relationship between material existence and the immaterial/transcendent being. For that matter, what separates religion/metaphysical thinking from non-religious thinking or more broadly expressed secular beliefs and principles about material existence is not entirely clear. Differences may devolve onto questions about the relatively systemic character of a body of thought and beliefs in situating individuals in relation to the world and the universe of being. We are, thus, left with a quandry on determining the boundaries between religious/metaphysical beliefs and non-religious/secular dogmaticism, political, cultural, or otherwise. I want to sustain this incapacity to define boundaries between religion and non-religion in order to argue that freedom of conscience is a more encompassing subject than we might connect with long-established bodies of religious/metaphysical beliefs, grounded in transcendental theologies.
Where, in this complicated landscape of thought and practice, do we situate rigorously non-transcendental secular thinking/principles that solicit the adamant, passionate adherence of believers? If we rob it of its character as a systemic theorization of materiality, Marxism could fall among such bodies of thought. Many feminist theorizations probably do fall within this category. If they command the "sincere and substantiated" beliefs of their adherents, how are they different from bodies of religious faith like Christianity, Islam, or Buddhism for purposes of evaluating the merit of adherents' demands for freedom of conscience in practicing lives consistent with the terms of their secular/non-religious beliefs concerning the character of meaningful, morally just, and satisfying experience of life? I ask this question, in part, because I believe that there is something disingenuous or misconstrued in the assertion that Americans may be entitled to freedom of religion but not freedom from religion. The point here is not that the First Amendment uniquely privileges a defined set of religious doctrines for free exercise, unimpeded by the actions of the federal government/Congress. Rather, it guarantees individuals' freedoms of conscience against the actions of government, however the moral compasses of individuals are constituted by life experiences and learning. The idea of concentrating on particular faith traditions as if they are somehow prioritized for protection, thus, misconstrues, in my view, the thinking of the Founders on the central role of faith in the lives of individuals, however such faith is constituted and whatever it includes.
In the particular context of the Hobby Lobby case, we need to come to terms with where one particular life process, human sexuality, connected or disconnected from biological reproduction, fits within particular, individual manifestations of conscientious belief. My point is that sexuality exerts an immeasurably large influence on the mental and emotional processes of individuals and, as such, the place of sexuality and its role within the construction of conscientious beliefs cannot be underestimated, either for devout Christians or dogmatic, psychoanalytically-informed feminists. I find it incomprehensible that any faith tradition or body of principles, transcendental or wholly secular and materialistic, can constitute itself without saying something meaningful about the role of sexuality.
Acknowledging this point, we need to approach the second question that I presented above: what limitations does social existence place on religious belief? In other words, if freedom of conscience makes contradictory demands on different individuals, then how do we reconcile these differences? Emphatically, the First Amendment has an answer to this question that applies solely to the interference of Congress with individuals' freedom of conscience: the free exercise of individual beliefs must be respected at least to the extent that such beliefs do not intractably impede the performance of governmental practices of general applicability that are of a compelling interest to the polity and to the government that acts in its interests. By contrast, capitalism, as a particular organization of production (notwithstanding the particular understandings of surplus production defined by Marxism), has a different answer: the free exercise of individual beliefs belong to the capitalist entrepreneur, in the interest of which the particular beliefs of individual capitalist employees may be freely subverted as an adjunct to the terms of a labor market contract. The free conscience of individuals belongs to the political space in a liberal rights regime, while its economic spaces, characterized, on the one hand, by free entrepreneurial activity and, on the other hand, by the contracting of free labor, know only contractual specifications and limitations to the free consciences of free laborers.
Thus, returning to the specificity of particular Supreme Court precedents, in Braunfeld v. Brown (366 U.S. 599 (1961)) the Orthodox Jewish plaintiffs argued that the state of Pennsylvania had intruded on their free exercise privileges by forcing them to remain closed on Sunday after they had closed on Saturday for the Jewish Sabbath, effectively truncating the owners' economic liberty as entrepreneurs to operate their businesses in conformity with their sincere and substantiated religious beliefs. The plaintiffs lost their case before the Warren Court, but the idea that interests me here is that it is at least conceivable that certain workers for these businesses may have been devoutly Christian - labor markets may be institutions governed on a principle of selectivity by entrepreneurs, but such selectivity may not always preclude hiring of employees by entrepreneurs from distinct and diverse ethnic and religious communities, especially when non-discrimination of minorities is a legal priority. Presumably, such Christians would have benefitted from the decision of the Court - they would have retained the sanctity of the Lord's Day against the demands of their employer to earn revenues by opening for business, however at the expense of another day's pay (money won't pay your way into heaven!). In the judicial environment after the decision in Sherbert v. Verner (374 U.S. 398 (1963)), however, it is likely that Sunday closure laws like those enforced in Braunfeld and Gallagher v. Crown Kosher Super Market of Massachusetts (366 U.S. 617 (1961)) would have yielded to the free exercise privileges of religious minorities, affording their employees alternative days off. As such, devoutly Christian employees would have been compelled by their freedom of conscience to choose between their livelihood with a particular employer, possibly within a slack labor market, and free exercise of their faith, legally enforced by the state but invalidated through the operation of free labor market contracting. The very processes leading up to the Sherbert case (dismissal of an employee by a capitalist employer when the latter's business practices contradicted requirements of the employee's religious practices) fully demonstrate the same situation.
Ultimately, we are faced in this situation with a clash in the enforcement of individual liberties in political and economic spaces, where the force exerted on individual employees by economic processes may be compelling and where the rigorous and disproportional protection of the free exercise privileges of capitalist entrepreneurs against employees by government may contravene and collapse the free exercise privileges of employees per se. It is a zone where the presumptions of a liberal rights regime break down under the force of capitalist labor markets and class processes, illustrating why the particular Jeffersonian ethos embodied in the Bill of Rights may be wholly compromised in an economy no longer characterized by small yeoman farmers and free artisan craftspeople but by hired hands of capitalist entrepreneurs. At this point, we reach the margins of what the liberal rights paradigm can inform us regarding the effects of a disproportional distribution of free exercise privileges and must transition to another mode of analysis that takes class processes as its point of departure: a class analytic Marxist analysis.
In the previous section of this post, I argued that Constitutional free speech privileges are virtually non-existent for capitalist workers and that, given the particular spatially extensive nature of the contemporary, electronic-age workplace, the denial of free speech privileges to capitalist workers cannot be meaningfully restricted to the workplace. If in earlier generations free speech could be compartmentalized outside of the workplace to enable employees to enjoy a private space as free citizens, capable of enjoying the liberties bestowed by the Founders through the Bill of Rights, in the era of Facebook, Twitter, and Linkedin, the capacity of a capitalist employer to exercise effective surveillance against the political speech of employees and to sanction such activities through employment actions (e.g. demotion, dismissal), even when they do not actively pursue associations with the firm or its activities, can produce a pervasive chilling effect on the political activities of capitalist employees. In a certain sense, the evolving corpus of adjudication and statutory enactments of labor market institutions since the heyday of industrial organization in the late 1930s seems to have supported a broader constriction of political liberties for workers in reaction to the self assertion of rights to organize on behalf of the collective self-interests of capitalist employees.
To some degree, the case of workplace free exercise privileges for capitalist employees under the First Amendment, augmented by the Religious Freedom Restoration Act (RFRA), poses even more deeply problematic issues, especially when tied to the institution of at-will employment. At this point, we need to back track into judicial precedents that we have already traversed. Emphatically, Adell Sherbert was dismissed from her capitalist employer for freely exercising her religious belief that working on the seventh day of the week constituted a profanity against God. Likewise, the respondents in the Smith decision were dismissed by their employers for following religious preceipts regarding the sacremental/ritualistic use of peyote. Neither appeal that reached the U.S. Supreme Court actually concerned, however, these dismissals. Rather, each ruling concerned the denial of unemployment compensation benefits by state-level authorities on the principle that the employees in question were dismissed by employers with cause.
As such, each application of free exercise privileges arises from governmental actions deriving from the outcomes of labor market practices by capitalist employers. At most, we could argue that capitalist employees potentially enjoy free exercise privileges by means of a public rectification - capitalist employers can always deny employees the full enjoyment of their free exercise privileges but, when they do so by dismissing employees who insist on practicing particular articles of their faith against the demands of the firm, they may encounter higher premiums for unemployment compensation insurance as state compensatory authorities recognize the validity of claims by employees that they were dismissed without cause. Otherwise, we have to recognize that there is no Constitutional foundation for issuing claims against capitalist employers for violating the free exercise privileges of employees. Moreover, in the aftermath of the Supreme Court decision in City of Boerne, enhanced scrutiny of free exercise claims issued against state and local governmental actions under the terms of RFRA no longer applies. As a consequence, assuming the Sherbert test on the Constitutionality of state and local laws/policies of general applicability no longer applies (something that might overstate the scale of the problem facing practitioners of minority religious traditions - the decision of the Supreme Court in Smith was premised on the limited grounds that use of peyote involved a criminally sanctioned violation of drug laws), then employees dismissed from a capitalist employer for reasons emanating from the free exercise of religion might again be denied unemployment compensation on the grounds that they were dismissed with cause. Regardless of the current terms for adjudication of free exercise claims emanating from a request for unemployment compensation, for employees, the capitalist workplace is a space within which both freedom of speech and freedom of religion go to die.
In this regard, when Justice Alito, in the majority opinion of the Court in the Hobby Lobby case, includes "employees" in his argument that "(a)n established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another" and, further, that "(w)hen rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people (U.S. Supreme Court, Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores Inc., et al., No. 13-354 (October 2013 Term), p 18 (emphasis in original), at: http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf)," he engages in a cynical overstatement of the case for extending free exercise privileges to the owners and officers of privately-held corporations. Pointedly, it is one thing to argue that the owners of a capitalist enterprise, under any given legal organizational form, maintain their individual privileges to act in accordance with their religious principles, except insofar as a compelling governmental interest compells the state to curtail such privileges. It is another thing entirely to imply, offhandedly, that such a judicial proceeding somehow will expand or reinforce the free exercise privileges of employees, as stakeholders in the same enterprise from which they likewise derive their livelihoods. The latter do not possess and have never been entitled to claim free exercise privileges against the actions of capitalist employers. Justice Alito states the actual terms of the case more honestly in the last sentence of the paragraph from which I derived the previous quotes. "And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies (Ibid, p 18 (emphasis mine))."
The Boundaries of Religious Liberty in a Rights Regime
In proceeding to elaborate the demands of religious liberty in a liberal "rights" framework, we face two distinct questions. First, what constitutes the subject of religious belief? Second, what limitations are imposed on the lived experience of religious belief by social existence? The questions here are too large to ever be adequately answered by this little section of a blog post. My response seeks to be suggestive of the potential expansiveness of free conscientious thought, commitment, and practice.
Succinctly, in coming to terms with what religion is, what religion does, and what religion can command as integral to its practice, I reject the notion that we can produce an exhaustive list of faith traditions and denominations that definitively qualify as religion. Religion is what the faithful say it is. The point that I am attempting to make here, in the broader context of an inquiry into the free exercise privileges of capitalist employees, is that it is not possible to qualify "sincere and substantiated" structures of belief in order to determine whether such structures merit protection by the First Amendment without imposing some arbitrary definitions on what rightly constitutes religious belief for the purposes of adjudication. Religion, or, more broadly, metaphysical speculation and faith in immateriality, underlies any and every systematic understanding of material existence, Marxism included. The "ultimate given" within a systemic theorization of material existence might be constituted by a belief in the incapacity of either introspective reasoning or empirical sensory observation and testing to unravel the complexity (overdetermination) of any particular material process within the universe, but such a belief is an article of faith, however minimalistic in its terms.
Allowing a wide berth to what actually constitutes religious faith, I think that there are some basic analytical terms that we can articulate in order to structure our understanding of religious/metaphysical thinking. Namely, every religious/metaphysical tradition lives out a particular set of relationships between the believer, the spiritual/metaphysical object of his faith/devotion, and the universe within which the believer is situated in relation to the myriad processes of material existence. I regard these conditions as a basic starting point for evaluating religion, even insofar as objects of faith and devotion lack a defined personality or a sense of divinity/immortality. At a basic level, most Buddhist traditions (though, perhaps, not Amida/Pure Land Buddhism), for example, lack the worship of a personal God, but situate believers toward a body of faith on the relationship between material existence and the immaterial/transcendent being. For that matter, what separates religion/metaphysical thinking from non-religious thinking or more broadly expressed secular beliefs and principles about material existence is not entirely clear. Differences may devolve onto questions about the relatively systemic character of a body of thought and beliefs in situating individuals in relation to the world and the universe of being. We are, thus, left with a quandry on determining the boundaries between religious/metaphysical beliefs and non-religious/secular dogmaticism, political, cultural, or otherwise. I want to sustain this incapacity to define boundaries between religion and non-religion in order to argue that freedom of conscience is a more encompassing subject than we might connect with long-established bodies of religious/metaphysical beliefs, grounded in transcendental theologies.
Where, in this complicated landscape of thought and practice, do we situate rigorously non-transcendental secular thinking/principles that solicit the adamant, passionate adherence of believers? If we rob it of its character as a systemic theorization of materiality, Marxism could fall among such bodies of thought. Many feminist theorizations probably do fall within this category. If they command the "sincere and substantiated" beliefs of their adherents, how are they different from bodies of religious faith like Christianity, Islam, or Buddhism for purposes of evaluating the merit of adherents' demands for freedom of conscience in practicing lives consistent with the terms of their secular/non-religious beliefs concerning the character of meaningful, morally just, and satisfying experience of life? I ask this question, in part, because I believe that there is something disingenuous or misconstrued in the assertion that Americans may be entitled to freedom of religion but not freedom from religion. The point here is not that the First Amendment uniquely privileges a defined set of religious doctrines for free exercise, unimpeded by the actions of the federal government/Congress. Rather, it guarantees individuals' freedoms of conscience against the actions of government, however the moral compasses of individuals are constituted by life experiences and learning. The idea of concentrating on particular faith traditions as if they are somehow prioritized for protection, thus, misconstrues, in my view, the thinking of the Founders on the central role of faith in the lives of individuals, however such faith is constituted and whatever it includes.
In the particular context of the Hobby Lobby case, we need to come to terms with where one particular life process, human sexuality, connected or disconnected from biological reproduction, fits within particular, individual manifestations of conscientious belief. My point is that sexuality exerts an immeasurably large influence on the mental and emotional processes of individuals and, as such, the place of sexuality and its role within the construction of conscientious beliefs cannot be underestimated, either for devout Christians or dogmatic, psychoanalytically-informed feminists. I find it incomprehensible that any faith tradition or body of principles, transcendental or wholly secular and materialistic, can constitute itself without saying something meaningful about the role of sexuality.
Acknowledging this point, we need to approach the second question that I presented above: what limitations does social existence place on religious belief? In other words, if freedom of conscience makes contradictory demands on different individuals, then how do we reconcile these differences? Emphatically, the First Amendment has an answer to this question that applies solely to the interference of Congress with individuals' freedom of conscience: the free exercise of individual beliefs must be respected at least to the extent that such beliefs do not intractably impede the performance of governmental practices of general applicability that are of a compelling interest to the polity and to the government that acts in its interests. By contrast, capitalism, as a particular organization of production (notwithstanding the particular understandings of surplus production defined by Marxism), has a different answer: the free exercise of individual beliefs belong to the capitalist entrepreneur, in the interest of which the particular beliefs of individual capitalist employees may be freely subverted as an adjunct to the terms of a labor market contract. The free conscience of individuals belongs to the political space in a liberal rights regime, while its economic spaces, characterized, on the one hand, by free entrepreneurial activity and, on the other hand, by the contracting of free labor, know only contractual specifications and limitations to the free consciences of free laborers.
Thus, returning to the specificity of particular Supreme Court precedents, in Braunfeld v. Brown (366 U.S. 599 (1961)) the Orthodox Jewish plaintiffs argued that the state of Pennsylvania had intruded on their free exercise privileges by forcing them to remain closed on Sunday after they had closed on Saturday for the Jewish Sabbath, effectively truncating the owners' economic liberty as entrepreneurs to operate their businesses in conformity with their sincere and substantiated religious beliefs. The plaintiffs lost their case before the Warren Court, but the idea that interests me here is that it is at least conceivable that certain workers for these businesses may have been devoutly Christian - labor markets may be institutions governed on a principle of selectivity by entrepreneurs, but such selectivity may not always preclude hiring of employees by entrepreneurs from distinct and diverse ethnic and religious communities, especially when non-discrimination of minorities is a legal priority. Presumably, such Christians would have benefitted from the decision of the Court - they would have retained the sanctity of the Lord's Day against the demands of their employer to earn revenues by opening for business, however at the expense of another day's pay (money won't pay your way into heaven!). In the judicial environment after the decision in Sherbert v. Verner (374 U.S. 398 (1963)), however, it is likely that Sunday closure laws like those enforced in Braunfeld and Gallagher v. Crown Kosher Super Market of Massachusetts (366 U.S. 617 (1961)) would have yielded to the free exercise privileges of religious minorities, affording their employees alternative days off. As such, devoutly Christian employees would have been compelled by their freedom of conscience to choose between their livelihood with a particular employer, possibly within a slack labor market, and free exercise of their faith, legally enforced by the state but invalidated through the operation of free labor market contracting. The very processes leading up to the Sherbert case (dismissal of an employee by a capitalist employer when the latter's business practices contradicted requirements of the employee's religious practices) fully demonstrate the same situation.
Ultimately, we are faced in this situation with a clash in the enforcement of individual liberties in political and economic spaces, where the force exerted on individual employees by economic processes may be compelling and where the rigorous and disproportional protection of the free exercise privileges of capitalist entrepreneurs against employees by government may contravene and collapse the free exercise privileges of employees per se. It is a zone where the presumptions of a liberal rights regime break down under the force of capitalist labor markets and class processes, illustrating why the particular Jeffersonian ethos embodied in the Bill of Rights may be wholly compromised in an economy no longer characterized by small yeoman farmers and free artisan craftspeople but by hired hands of capitalist entrepreneurs. At this point, we reach the margins of what the liberal rights paradigm can inform us regarding the effects of a disproportional distribution of free exercise privileges and must transition to another mode of analysis that takes class processes as its point of departure: a class analytic Marxist analysis.
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