Would Jesus oppose partisan gerrymandering?

The title may be slightly glib, but a biblical allusion caught my attention as I was reading the briefs in Gill v. Whitford, the partisan gerrymandering case before the Supreme Court. The reference appeared in the amicus brief of Heather Gerken, Jonathan Katz, Gary King, Larry Sabato, and Sam Wang--an impressive lineup, to be sure! The biblical references occur in a passage about the ubiquity of the principle of symmetry:

While modern discrimination law is replete with examples of symmetry standards, the principle’s roots are ancient. One finds, for instance, examples in Judeo-Christian ethics, Genesis 13:8-9; Matthew 7:12. The notion of turning the tables is so powerful that it is a canon of literature, William Shakespeare, A Mid-Summer Night's Dream; William Shakespeare, Twelfth Night; Mark Twain, The Prince and the Pauper (1881), music, W.S. Gilbert & Arthur Sullivan, H.M.S. Pinafore (1878), and moral philosophy, John Rawls, A Theory of Justice 73-78 (rev. ed. 1999). This measure of fairness is deployed across cultures. See Cinderella Across Cultures (Martine Hennard Dutheil de la Rochère et al. eds. 2016); Heather K. Gerken, Second Order Diversit, 118 Harv. L. Rev. 1099, 1146 & n.124 (2005) (discussing Japanese tradition). Even children rely on the time-honored strategy of “I cut, you choose.”

So, no, the brief is not about whether Jesus would support or oppose partisan gerrymandering. Instead, it is a biblical allusion to the principle of symmetry.

Matthew 7:12 is the "Golden Rule": "So whatever you wish that others would do to you, do also to them, for this is the Law and the Prophets."

Unfortunately, I think this gets symmetry wrong--the Christian faith, rightly understood, including the Golden Rule, is quite asymmetrical.

Consider the Golden Rule itself: it is to do to others as you would wish they would do to you. There is no expected return from others. Indeed, there is a likelihood that others would not reciprocate. But there is no expectation of anything in return for those who adhere to the Golden Rule. The command from Jesus is to do without any expectation of anything in return. The Golden Rule can be misconstrued as anticipating or expecting some kind of mutual respect toward one another. It isn't that, as much as we might want everyone to respect one another. Instead, it is about the radical self-giving of the Christian to all others--giving, without expecting anything in return.

The brief offers the simple summary of symmetry: "Partisan symmetry is a deeply intuitive standard for measuring discrimination. It asks a simple question: what would happen if the tables were turned?" But, I think, the Gospels are replete with expectations for the Christian tradition of asymmetrical treatment and expectations.

From earlier in the Sermon on the Mount in Matthew 5, for instance, Jesus expressly rebukes a "turn the tables" standard: "You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also. And if anyone would sue you and take your tunic, let him have your cloak as well. And if anyone forces you to go one mile, go with him two miles. Give to the one who begs from you, and do not refuse the one who would borrow from you."

This, of course, doesn't mean that principle of governance can't be dictated by norms like symmetry. The brief is correct that symmetry has an extensive legal and non-legal tradition. (Indeed, the "eye for an eye" reference was omitted, surely a strong symmetrical standard!) And it might be that in establishing rules pertaining to representative government, symmetry is a sensible standard.

But, it is to suggest something slightly more modest. Biblical allusions can be a valuable device in making a persuasive argument. But precision of understanding biblical claims is, perhaps, just as important.

DOJ says if there were an abortion mandate, corporations couldn't object

During today's oral argument in Sebelius v. Hobby Lobby, Solicitor General Donald Verrilli conceded that under the Department of Justice's interpretation of the Religious Freedom Restoration Act, a hypothetical "abortion mandate" could apply to all for-profit corporations (and non-profit non-religious corporations), without any ability to object. (In this case, abortion is not covered, but contraceptives are covered. The plaintiffs in this case were challenging the contraceptives that thin the uterine lining and make it more difficult for a fertilized egg to implant, which they believe terminates a human life.)

JUSTICE KENNEDY: Under your view, a profit corporation could be forced--in principle, there are some statutes on the books now which would prevent it, but--could be forced in principle to pay for abortions.

GENERAL VERRILLI: No. I think, as you said, the law now--the law now is to the contrary.

JUSTICE KENNEDY: Bur your reasoning would permit that.

GENERAL VERRILLI: Well, I think that--you know, I don't think that that's--I think it would depend on the law and it would depend on the entity. It certainly wouldn't be true, I think, for religious nonprofits. It certainly wouldn't be true for a church.

JUSTICE KENNEDY: I'm talking about a profit corporation. You say profit corporations just don't have any standing to vindicate the religious rights of their shareholders and owners.

GENERAL VERRILLI: Well, I think that if it were for a for-profit corporation and if such a law like that were enacted, then you're right, under our theory that the for-profit corporation wouldn't have an ability to sue. But there is no law like that on the books. In fact, the law is the opposite.

CHIEF JUSTICE ROBERTS: I'm sorry, I lost track of that. There is no law on the books that does what?

GENERAL VERRILLI: That makes a requirement of the kind that Justice Kennedy hypothesized. The law is the opposite.

CHIEF JUSTICE ROBERTS: Well, flesh it out a little more. What--there is no law on the books that does what?

GENERAL VERRILLI: That requires for-profit corporations to provide abortions.

JUSTICE KENNEDY: What if a law like that--

CHIEF JUSTICE ROBERTS: Isn't that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that's what we had before us.

GENERAL VERRILLI: It is their sincere belief and we don't question that. But I will say, and I do think this is important and I say it with all respect, that that is how they--that is the judgment that they make. It is not the judgment that Federal law or State law reflects. Federal law and State law which does--which do preclude funding for abortions don't consider these particular forms of contraception to abortion.