The Era of Entitlement:
What Alabama Judge Roy Moore, File "Sharers," and the Catholic Church Have in Common

By MARCI HAMILTON
hamilton02@aol.com
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Thursday, Aug. 28, 2003

This is the Age of Entitlement. I do not mean entitlement only in the sense of the belief that one is entitled to a government handout. I also mean entitlement in the simpler sense of the belief that one deserves to get exactly what one wants - regardless of the law and despite the public good.

Four examples drawn from recent legal controversies illustrate this point. In each, the law made clear what the right thing to do was. But in each, the culprit insisted on doing something else - something they insisted that, illegal or not, they were entitled to do.

The "Entitlement" to Free Music

In my last column, I went to bat for the Recording Industry Association of America, applauding its decision to file copyright infringement suits against student infringers. I have not always been on RIAA's side, but on this issue, they are doing the right thing. In response, I received numerous emails from individuals who hold the belief that they have an entitlement to free music on the web.

They argued that their lawbreaking and copyright infringement are justified because they believe the market is inefficient; or the RIAA and its members take too much money away from the artists (so therefore file sharers are entitled to take even more?); or that CDs are too expensive; or that copyright law is not properly structured to permit full technological innovation on the web - or all of the above. One student even argued that he needed to take the music because he does not have a credit card!

In sum, they offered one reason after another why they were entitled to their free music now. But they offered precious few plans to try to alter the system through legal channels--for example, by boycotting the elements of the industry they oppose, or by lobbying Congress.

File sharers may invoke policy arguments, but actions speak louder than words: They are not interested in the good of the system, but rather in their own selfish advantage. And so they feel they cannot be expected to wait for the system to change - or to work for that result. Calling this attitude a sense of entitlement may even be overly generous. Selfishness may be a better, and simpler, word.

The "Entitlement" to Have Religious Belief Dominate A Courthouse

Meanwhile - equally selfishly, and equally heedless of the law - Alabama Supreme Court Chief Justice Roy Moore and his followers have insisted on Justice Moore's supposed entitlement to keep the huge, stone rendition of the Ten Commandments he personally had installed in his courthouse.

Pay no mind, they say, to the fact that a federal appellate court has ordered Moore to remove the statue. Forget, also, that Moore's colleagues unanimously oppose him. And pay no mind that the court's decision was plainly directed by relevant Establishment Clause precedents.

Meanwhile, while you're at it, forget the fact that, under these precedents, the statue is an unconstitutional government endorsement of one religious tradition - and therefore has the capacity to make all other citizens feel disenfranchised, whether Hindu, Muslim, or atheist.

What really matters, according to Moore and his followers, is not what the federal appellate court ordered - or even what the U.S. Supreme Court has said. What matters is that he, Moore, believes that the Ten Commandments, and the Judeo-Christian tradition in general, are the bedrock of American law.

Apparently, his education excluded the Code of Hammurabi, the British common law, the actual history behind American law, and the text of the Establishment Clause. It may also have excluded a close reading of the Commandments themselves; the first four are plainly religious, not legal, directives. Anyone who attempts to argue that the Commandments are not drawn from a particular religious tradition has not read the first four, which mandate a monotheistic religion, and knows precious little about the actual range of religious beliefs in the world.

In other words, Justice Moore believes that he is entitled to impose his religious heritage on every citizen entering his courtroom and his courthouse. Like the file sharers, he has a strong sense of entitlement that allows lawbreaking.

Moreover, as with the file "sharers," Justice Moore's sense of entitlement is also a form of selfishness. If no one pays for music, there will be little music to enjoy. If every government official in every state and locality imposes his or her religious beliefs on every citizen, little religious freedom will remain.

The "Entitlement" To Special Treatment for Religious Institutions

Justice Moore has been called an extremist, but in truth, his position is simply part and parcel of the entitlement atmosphere of the times. For over a decade, religious entities have been lobbying in Congress and the states to obtain the right to trump every imaginable law - without any apparent concern for those that could be hurt by failure to enforce the law.

The discourse in the state legislatures and the Congress has been all about the entitlement of the religious believer. And that same discourse has fueled the Bush Administration's push for federal funding of "faith-based" social services, or more accurately, religious mission. If secular services are receiving federal funds, then religious mission should have a cut of the pie as well, or so the reasoning goes. Again, the Establishment Clause is treated as if it did not exist.

Congress and the state legislatures--though they are charged by the federal and state constitutions with considering the public good--all too often have been swept into the entitlement talk, ignoring questions about the larger public good beyond the entitlement claims.

For example, when Congress considered the Religious Freedom Restoration Act (RFRA), which gave religious individuals special legal privileges against every law in the country, it failed to focus on whether anyone might be harmed by giving religious individuals such privileges. Similarly, when Congress considered whether to give religious landowners special privileges against zoning laws in the Religious Land Use and Institutionalized Persons Act (RLUIPA), it failed to focus on the impact on neighboring landowners.

The focus was consistently on the groups claiming an entitlement - and not on the common good. State legislators' consideration of the state RFRAs has been equally barren of focus on, and discourse about, the public good. Indeed, these laws have been pushed through as silently and quickly as possible precisely so as to avoid such a discussion.

The Catholic Church's "Entitlement" to Preserve Its Power and Prestige

Entitlement-think also fueled the Catholic Church's current crisis. As I have argued in a series of previous columns on the Catholic Church abuse scandal, the Church's cardinal mistake was to fail to report pedophiles to the authorities. Had the first pedophile been reported in each archdiocese, and the Church washed its hands of the perpetrator, the Church itself would not be in the disastrously weakened position it is today.

Instead, the Church operated from the position--fueled by Vatican documents threatening excommunication--that protection of the Church's image was far more important than the welfare of children or the interests of justice. In an orchestrated manner, the Church shuffled pedophiles from parish to parish, because its leaders felt entitled to preserve its public image at all costs.

The media and the prosecutors bought into the entitlement-think, too, agreeing repeatedly to let the Church "take care of its own." A sense of entitlement to power and prestige made the Church the focus of what was actually a criminal conspiracy that harmed thousands of children. The Church ended up at the very center of the problem of abuse that it could instead have contributed towards solving had it not been so determined to protect its image and to place itself above the law.

For decades, the Church was allowed to continue on in virtual solipsism - Ignoring the public good. And even now, entitlement dies hard.

It took thousands of victims, hundreds of lawsuits, and a rebel newspaper--the Boston Globe--to break the hold of the Church's mass hypnosis. And even with its hold over the media and to some extent, over law enforcement, broken, the Church shamelessly continues to argue for the "church autonomy doctrine" in various court papers. The "church autonomy doctrine," of course, is just another phrase for the Church's supposed entitlement to ignore the law, regardless of the public good.

The End of Entitlement?

Fortunately, the Entitlement Era may be coming to a close. With more and more institutions inclined to call lawbreaking just what it is - from the RIAA's willingness to call stealing stealing, to the Boston Globe's willingness to call abuse abuse - entitlement is under siege. Lawbreaking is lawbreaking no matter who the perpetrator is - whether a church, or a state Supreme Court justice, or a college student - and increasingly, some have come to insist on that very truth.

If we are lucky, in our lifetimes, we will see the end of entitlement, and the beginning of responsibility and accountability. For too long, we have lulled ourselves into believing it is possible to have whatever we want, legal or not, with no consequences. This generation needs to reverse this stance - or there will be more lawbreaking, more senseless defiance, and more victims.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her email is hamilton02@aol.com. Her earlier columns on copyright, church/state issues, and the Catholic Church child abuse scandal may be found in the archive of her columns on this site.

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