Thursday, July 31, 2014
Justice Ginsburg on the five male Justices' "blind spot" in Hobby Lobby, and the influence of daughters on their fathers
Justice Ginsburg's recent interview with Katie Couric is getting a lot of attention. One Yahoo! write-up focuses entirely on Justice Ginsburg's dissent in Hobby Lobby. The accompanying five-minute clip is worth watching. One of the more interesting exchanges was Justice Ginsburg's expressed belief that the "five male justices" (in the words of Couric's question) had a "blind spot" (Ginsburg's words, repeated by Couric, and affirmed by Ginsburg) in Hobby Lobby. The same five justices also had a blind spot, Justice Ginsburg volunteered, "in Lilly Ledbetter's case." (Transcript of exchange below the jump.)
This kind of identity-based attribution is problematic in its own right. Think about how this might work in reverse. There were parties on both sides of what Justice Ginsburg calls "Lilly Ledbetter's case." Should the other party have been worried that Justice Ginsburg would be partial to Lilly Ledbetter because the two are women? I don't think that would make too much sense (as opposed to worrying about Justice Ginsburg's perception of the merits because of her ideology and jurisprudence). Would it not be offensive to attribute Justice Ginsburg's Ledbetter vote to a "soft spot" for women, in a manner analogous to Justice Ginsburg's attribution of the Hobby Lobby majority's decision to a "blind spot" for women? Of course it would.
Justice Ginsburg's comment on the five male Justices in Hobby Lobby also reveals a couple possible blind spots of her own. One comes from her Supreme-Court-centric view of the issues in the case. Numerous female federal judges have entered injunctive relief of one sort or another for plaintiffs challenging the contraceptives mandate. What explains their votes? Is the reasoning of Justice Samuel Alito and his brethren in the Hobby Lobby majority any better or worse, for example, when prefigured by the reasoning of Judge Diane Sykes (7th Cir.) or by the analysis of Judge Lee Rosenthal (S.D. Tex.)?
Another apparent blind spot emerged in Justice Ginsburg's description of the legal basis for Hobby Lobby. It is easy enough to pass off as a minor slip her characterization of the decision as involving the "constitutional right" of employers to act as Hobby Lobby did. But "it's just a verbal slip" became less likely when Justice Ginsburg went on to say that the majority had incorrectly interpreted the Free Exercise Clause. Does Justice Ginsburg have a blind spot for RFRA and the congressional judgment embodied in that super-statute? That statute, and not the Free Exercise Clause, is the basis for the Hobby Lobby decision.
Having disagreed with the gist of Justice Ginsburg's discussion of Hobby Lobby, I would like to end on a note of partial agreement. As the father of three daughters, although not a federal judge, I am sure Justice Ginsburg is right, as a general matter, that "daughters can change the perceptions of their fathers." I am less certain, though, about her deployment of that assertion in this context. Justice Ginsburg may have been thinking about this recent paper by Adam Glynn and Maya Sen. Their analysis of votes by federal circuit court judges indicates that, in their words, "conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion than judges who have only sons."
As with much empirical research on lower court judges, it is unclear (at best) whether the results can be used to explain the behavior of Supreme Court Justices. But if we're going to go down this road, it may be worth noting that four of the five justices in the Hobby Lobby majority have daughters. Justice Scalia alone has more daughters (four) than all four dissenting justices combined (three). Chief Justice Roberts, Justice Kennedy, and Justice Alito each have one daughter.
Yesterday I blogged about the Roundtable Discussion co-hosted by the Pontifical Academy of Sciences, Global Freedom Network, and the U.S. Embassy to the Holy See. More information has become available about the content of that important meeting which the Embassy described as follows:
[T]he Embassy was proud to co-host with the Global Freedom Network and the Pontifical Academy of Sciences a digital video conference with Luis CdeBaca, U.S. Ambassador-at-Large to Monitor and Combat Trafficking in Persons, to discuss this year’s U.S. Department of State's Trafficking in Persons report. Over 40 representatives from the Vatican, Embassies to the Holy See, NGOs, and media outlets were present to learn about the report and talk about how to improve and increase anti-trafficking efforts.
As I mentioned in the earlier post, this meeting exemplifies one of many efforts to bring together different stakeholders to discuss and combat one of the most pressing moral and legal issues of our time. Of particular interest to MOJ readers may be the comments of Bishop Marcelo Sánchez Sorondo. Among other things, he comments on this interplay between an overwhelming social problem and the potential for defeating it when religions, governments, and the private sector actors find common ground and act:
Because of the human and moral scandal they mean and interests involved, which lead to pessimism and resignation, many international institutions have turned their backs. This is why the 2014 TIP Report is so important, which we can say was especially motivated by President Obama’s visit to Pope Francis, as confirmed one of the opening photos.
We must thus be grateful to Pope Francis and to President Obama and to Secretary of State John Kerry for identifying one of the most important social tragedies of our times and having enough confidence in democratic institutions to instruct them to be responsible to spot human trafficking, engage our communities, and commit to take action. As you know, after our November workshop, we decided to tackle this issue by founding an interreligious partnership called the Global Freedom Network, which you can read more about on our website www.gfn2020.org
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As religious people we can repeat the words of Pope Francis during the canonization of the Mexican St Guadalupe García Zavala, “this is called 'touching the flesh of Christ'. The poor, the abandoned, the sick and the marginalized are the flesh of Christ. And Mother Lupita touched the flesh of Christ and taught us this behaviour: not to feel ashamed, not to fear, not to find 'touching Christ’s flesh' repugnant. Mother Lupita had realized what 'touching Christ’s flesh' actually means”. Pope Francis’ words are a clear response in the light of Jesus Christ’s message to this new form of contemporary slavery, which constitutes an abhorrent violation of the dignity and rights of human beings.
The full text of the Bishop’s remarks, as well as those of U.S. Ambassador to the Holy See, Ken Hackett and U.S. Ambassador At Large to Monitor and Combat Trafficking in Persons, Luis CdeBaca, can be found here and are definitely worth the read.
Wednesday, July 30, 2014
Today is the first UN World Day Against Trafficking in Persons. To commemorate the day, the U.K. Ambassador to the Holy See, Nigel Baker, has blogged about a roundtable hosted by Pontifical Academy of Sciences, the Vatican-based Global Freedom Network (an initiative of Pope Francis and Archbishop of Canterbury Justin Welby) and the U.S. Embassy to the Holy See. He has entitled the piece, “Human Trafficking: Responding to the Pope’s Appeal.”
Teaching, writing, and studying Human Trafficking can be a dark subject matter. This was underscored for me this summer when I taught my Human Trafficking seminar every day in Catholic University Law School’s Rome Human Rights Program – as opposed to once a week as in a regular semester. I saw that the material became a bit overwhelming to these young adults in the class when faced with such a volume of information at such a fast pace. It is often difficult to see anything positive in the field. Yet, this post struck me for two reasons.
First, it is a nice reflective piece on concrete ways governments, religious institutions, and private entities can come together to address a complex social issue. It is no surprise to me that central in this event was the U.S. Ambassador at Large to Monitor and Combat Trafficking in Person, Luis CdeBaca. He has done an excellent job of recognizing and including in this movement the work of religious organizations and private entities.
Second, and somewhat unrelated – it struck this Irish woman how amazing it was that a British official was publicly posting a reflection on how we all need to respond to a pope’s appeal for action. It is not only that one could not have imagined such an act 20 years ago. One could not underestimate the tension between Catholics and non-Catholic in Britain - less than 7 years ago former British Prime Minister Tony Blair was called a “fool” for converting to Catholicism.
Yet, today we see unity from across social groups behind this abolitionist movement as reflected in this blog piece.
Therefore, notwithstanding the difficulty in working in this area, there are small rays of hope that great social challenges can be overcome…and Catholic legal and social thought is playing a role.
One of the results of MOJ's recent move to the Law Professor Blogs Network is that now a picture of men's underwear for sale often impinges on the retained (and beautiful) image of Our Lady Mirror of Justice. Perhaps this is the (unintended) application of the schoolboy's Latin pun "semper ubi sub ubi"?
Faced with demands by adjunct faculty to unionize, a number of Catholic colleges and universities have argued that they are not subject to NLRB jurisdiction, claiming an exemption as a "religious employer." In a piece I wrote for Pepperdine's symposium on The Competing Claims of Law and Religions a couple of years ago, I suggested that, in the case of adjunct faculty, NLRB oversight was not likely to create the kind of entanglement that exemption was concerned with. I also expressed concern about Catholic institutions of higher education attempting to use the exemption as a shield allowing them to tread adjuncts in ways inconsistent with Catholic social teachings.
Faced with efforts by adjunct faculty to unionize, the University of St. Thomas took a different approach. University President Julie Sullivan, expressed sympathy for the position of adjuncts, but explained why she thought unionization was not the best way to promote the interests of adjuncts and the university. Her arguments were apparently persuasive: The NLRB just certified the results of the election that was recently held: 136 opposed and 84 in favor of unionization.
In the immediate aftermath of the the certification, President Sullivan sent an e-mail to all adjunct faculty outlining her plans to address the top-level adjunct faculty priorities identified over the past year. These include creation of a new Adjunct Faculty Task Force who will work toward better integrating adjunct faculty into the univesity and providing them with a variety of participation options, providing adjunct representation on the faculty Senate, develop proposals for increasing adjunct faculty salaries and working to provide ways for adjunct faculty to participate in the university's benefit programs.
Whether all of this comes to fruition remains to be seen, but it is an enormous step in the right direction.
Tuesday, July 29, 2014
Yesterday was the centenary anniversary of the beginning of World War I. On July 28, 1914, one month after Archduke Franz Ferdinand of Austria was assassinated, the Austro-Hungarian empire made its first moves against Serbia. The Great War would end more than four years later.
This weekend, I visited the Museum of Fine Arts in Boston, which was hosting a very fine exhibit of American World War I posters. I was struck by the powerful imagery of civil religion in many of them. Here are two exhorting the purchase of war bonds that stood out to me as particularly representative of the genre:
And this afternoon, to remember the War, Mark Movsesian and I visited Flag Pole Green in Queens, New York, which has this lovely memorial to the men of Queens who died in the War:
Just a few fragments of civil religion–that perennial American socio-political coagulant–in memory of the war to end war.
David Frum, the at The Atlantic, joins others in welcoming Paul Ryan's anti-poverty proposals as an important step in returning Republican political leaders to serious discussion about how to deal with poverty. But Frum thinks the compassionate conservatism of the early Bush II years--which Ryan's proposal so far largely resurrects--won't be adequate for today's "more difficult [economic] circumstances," in which long-lasting unemployment is less attributable to bad personal decisions and social environments than it was, and more attributable to broad structural features of the economy:
In 1999-2000, it seemed realistic to draw a sharp line of distinction between the vast majority of adults willing and able to work full-time—and thereby earn a living somewhere north of the poverty line—and the small minority of adults whose bad choices or bad situation rendered them dependent on public assistance. But for half a decade now, that distinction has looked blurry. The specific problem of poverty among those who don’t work full-time is no longer so easily separated from the broader problem of pervasive economic insecurity among those who do.
Frum makes several suggestions, in the vein of Douthat/Salaam "reform conservatism," for how conservatives can compete in the upcoming policy debates. (Among other things, support the earned income tax credit and mother's allowances; oppose minimum-wage raises, universal pre-K education, and immigration reforms that would keep the market for labor soft.)
I marvel at Ryan Anderson's poise, patience, and brilliance in defending marriage as a conjugal partnership--which is to say, defending marriage--in the face of hostile critics.
July 29, 2014 | Permalink
I was just reading about how the cause for the canonization of Pope John Paul I is advancing in Rome. This on the heels of the announced beatification of Pope Paul VI in October and the recent canonizations of Pope John XXIII and Pope John Paul II. Only Pope Francis and Pope Benedict XVI among the pontiffs to reign during or after the Second Vatican Council are not either declared saints or current candidates for sainthood. Meanwhile, Pope Francis has reminded us that the cause for Ven. Pope Pius XII, who lived and reigned before the aforementioned Council, is stalled, and it was only recently that the Vatican website actually acknowledged the fact that Pope Pius X, who also blessedly lived and reigned before the aforementioned Council, was declared by the Church to be a saint (in 1954). My understanding is that Sarto became a saint even while living in the Papal Apartment, the high cost of frugal living perhaps not appealing to the greatest Pope of the twentieth century.
Monday, July 28, 2014
Split panel of Fourth Circuit holds Virginia's marriage laws violate a fundamental individual right, protected by the Due Process Clause, to marry a same-sex partner
A split panel of the United States Court of Appeals for the Fourth Circuit held today that Virginia's definition of marriage to require a man and a woman violates the Due Process Clause. Judge Floyd wrote the opinion for the court in Bostic v. Schaefer, in which Judge Gregory joined. Judge Niemeyer authored a dissent.
I hope to have more analysis of the case down the road. My initial reaction is that the court's analysis in terms of fundamental rights presents a doctrinally clearer picture of the arguments on both sides.
If Glucksberg supplies the right framework of analysis (as I believe it should), then the majority's conclusion is untenable for the reasons set forth in Judge Niemeyer's dissent. The panel majority distinguishes Glucksberg by saying that Glucksberg's analysis "applies only when courts consider whether to recognize new fundamental rights." The crucial move, then, is the court's determination that "the fundamental right to marry encompasses the right to same-sex marriage." And that determination turns on a reading of Lawrence and Windsor. These decisions, Judge Floyd says, "indicate that the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as the choices accompanying opposite-sex relationships." Yet this attempt to harmonize Lawrence and Windsor with Glucksberg is unpersuasive. Those cases simply ignore Glucksberg and its fundamental-rights-based analysis rather than supply guidance for how to define the scope of fundamental rights.
Given how the Fourth Circuit decided this case and the fact that it is from Virginia, Bostic may turn out to be an attractive vehicle for a range of Justices. It is reasonable to assume that Justice Kennedy will probably continue to ignore Glucksberg's analysis. Yet this Virginia case provides a promising vehicle for maximizing the likelihood that the Court must confront its doctrinal incoherence in the substantive due process arena. After all, there would be something awkward about a Supreme Court decision that ignores the basic concept of a "fundamental right" that the lower court in a case like this thinks the Court's doctrine requires it to use. On the other side, those Justices interested in recognizing a constitutional right to same-sex marriage may be attracted by the symbolic significance of deciding same-sex marriage out of the same state that supplied Loving v. Virginia.
A panel of the United States Court of Appeals for the Second Circuit today unanimously upheld against Establishment Clause challenge the display of a 17-foot cross from the wreckage of the World Trade Center in the National September 11 Museum. (HT: @Edmannino) The decision also rejects an Equal Protection Clause challenge premised on the denial of funds for an accompanying symbol commemorating atheists. Judge Raggi wrote the opinion for the court in American Atheists, Inc. v. Port Authority of New York and New Jersey, in which Judge Lynch and Judge Chin joined.
From the opinion's concluding summary:
1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:
a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;
b. an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and
c. there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.
2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.
The outcome seems plainly correct. The court's extensive reliance on Lemon and relatively light discussion of Town of Greece will be disappointing to those (like me) who think the methodological approach of Town of Greece should apply to Establishment Clause analysis beyond legislative prayer.
Saturday, July 26, 2014
Michael, you raise a good question about whether Blaine Amendments might be a "blessing in disguise" because they--albeit "unintentionally"--"shield many primary and secondary schools" from the choice to "capitulate to the secular orthodoxy or ween yourself from the government teat."
These are hard questions for schools. In a paper for a conference in Rome a few years ago, I presented various considerations, including the possibility that "withholding state financing to religious schools can affect their integrity and vitality as much or more as providing funds with conditions and controls attached":
When religious schools are denied financing while state [and secular private] schools receive it, parents face powerful financial disincentives against choosing religious schools for their children. To overcome that disadvantage, religious schools may have to change their programs to attract more donations, more applications, or more full-tuition-paying students instead of low-income students—all of which may compromise the school’s mission to teach the faith or educate the poor. Or schools may have to close altogether. Early in 2009, American newspapers reported that four Catholic secondary schools in New York City had been forced by fiscal necessity to join the state system as so-called charter schools. The change would permit them to receive funds but would require them to eliminate their religious components entirely, not just in selected classes as Supreme Court decisions like Lemon had required.
So I have a few reactions to your question:
1. To preserve their ability to choose their mission, Catholics and other religious groups should certainly try to increase their schools' financial independence so they are less exposed to the difficult choice of taking aid with strings or losing equal aid.
2. Nevertheless, whether the schools' integrity and vitality will be more threatened by taking aid or losing it depends on the situation, and on the kind of strings. Therefore, parents and schools should have the choice, even if the state has structured it as less than ideal. Blaine Amendments wrongly take the choice away from them.
3. If the societal opposition to Catholic or other religious doctrines and policies is so strong, it may not stop at putting strings on funding. Catholic and evangelical schools that violate antidiscrimination norms may face damages awards and fines even if they don't receive funding. Catholic schools have to figure out how to respond to that problem, entirely apart from Blaine Amendments.
(This sets aside, of course, the argument that secular regulation, such as nondiscrimination law, may sometimes actually push a school toward a better position even under Catholic teaching properly understood--the discrimination may be "unjust." But obviously how to understand Catholic teaching is for the school and religious leaders to decide, not the state.)
Michael Sean Winters has an excellent post welcoming Paul Ryan's proposal as a potential return by Republicans to serious discussions about how to assist and empower the poor. Michael Sean closes
by recalling the talk delivered by Bishop Robert McElory at John Carr’s Initiative on Catholic Social Thought in Public Life at Georgetown, in which +McElroy called for Catholics to become “insurgents” within their own parties. Ryan did that yesterday. I think he has further to go: I do not see how anyone committed to Catholic social teaching can fail to see the need to raise the minimum wage, for example. But, Ryan deserves great praise for taking on the issue and for putting forward ideas and for inviting criticism and continued debate. ... Shame on all of us if we do not seize this moment to remind the American Christian community that Matthew 25 says nothing about a rising middle class, and that we welcome anyone, but most especially Cong. Ryan, to the discussion our nation has for too long avoided: How do we continue the fight against poverty in ways that will actually help the poor?
Friday, July 25, 2014
It has been over 100 days - 102 days to be exact. 102 days since Boko Haram kidnapped over 200 girls and threatened to sell them into sexual slavery. I worry that in today’s 24-7 news cycle that fact has become “yesterday’s news.”
As a human trafficking scholar I think a great deal about the parallels between the slavery of today and the Trans-Atlantic slave trade in the 18th and 19th centuries. I have considered the role of the bystander in both these systems, trying to imagine how it was possible for people - particularly the bystanders - to justify the ownership of human beings as property. It is difficult to wrap one’s mind around the concept that it was acceptable and not shocking to abduct, buy, and sell other people.
And then 100 days pass since these girls were abducted and threatened to be sold and it seems as though this terrible crime is no longer at the forefront of the American consciousness. It is perhaps no longer shocking.
Three months after the crime, Malala Yousafzai visited Nigeria and met with President Goodluck Jonathan who claimed he would bring back the girls “as soon as possible.” Well, apparently “as soon as possible” means right after he finishes spending $1.2 million, not on the rescue effort, but on hiring the American public relations firm, Levick, to improve his image. It seems to me that such an amount of money may have been better spent actually trying to rescue the girls…rather than paying Americans to explain why the government has not done so. If that is “as soon as possible” I would hate to see what “when I get around to acknowledging it happened” looks like.
Yet, the outrage is gone. The shock is gone. We in the West seem to have largely moved on to other issues. How can this be? It may be because on some level we accept the objectification of people…just like bystanders accepted slavery centuries ago.
Some reject the parallels drawn between human trafficking and the Trans-Atlantic slave trade, asserting that there is an important distinction between legally sanctioned slavery and that which is not state supported. These events underscore that laws do not the society make. While it is indeed symbolically important to end laws that sanction slavery or other moral wrongs, it is necessary but not sufficient. A legal shift is interesting but a social shift is what is required. And we in the West seem not to have made that shift.
While I support Pope Francis’ bold call for human trafficking to explicitly be treated as a crime against humanity it will amount to nothing until we as a global society truly value the lives of such victims as though they were our own children…until the shock lasts longer than a week, a month, or 102 days. Until that day comes the parallel between the bystander in the 1800’s and the rest of us unavoidable.
This Atlantic article, "Whatever Happened to Dinesh D'Souza?," is an interesting account of how D'Souza went from writing seriously intended (if debatable) conservative books on multiculturalism, education, and politics to peddling s--t about Obama's Kenyan "rage" against America. The thesis is that D'Souza decided that trying to persuade thoughtful people on the other side wasn't worth it (didn't sell books etc.), and just started preaching to the choir. Something that could certainly be said about many smart people today, left and right, who write stuff far below their brainpower.
But here are my favorite sentences in the article:
Yet failing to take on the best arguments of the other side—“to play Notre Dame” in the words of Charlie Peters, editor emeritus of Washington Monthly—carries risks. D’Souza’s subsequent books and films testify to the intellectual pitfalls of ignoring the critics. His demonization of President Obama is a case in point.
They're my favorite, of course, because of the "play Notre Dame" metaphor. (Here's another example of it.) If Protestant/secular quarterbacks/intellectuals are going to take on the best on the other side, they have to mix it up with the fighting Irish. Let's remember, however, how many other Catholic schools have serious Catholic intellectuals (especially in the law schools, of course!), and also serious sports traditions--whether it's St. John's and Villanova basketball, or St. Thomas's potency across the big Division III sports.
Perhaps my principal difficulty in contributing to this blog "dedicated to the development of Catholic legal theory" is the endless plasticity that now molests the denotation -- to say nothing of the connotation -- of the capital-C adjective "Catholic" in so many minds. Most, though by *no* means all, of the disputes among contributors to this blog can -- and *should* -- be traced to their origins in different understandings of what it means to think as a Catholic.
The Second Vatican Council changed no doctrine of the Faith, as it was exactly a "pastoral" Council. The oft-asserted spirit of "Vatican II," however, did, with the help of its enablers, introduce what Chris Ferrara has aptly termed "the regime of novelty" into the life of the Church (see Ferrara and Woods, The Great Facade: Vatican II and the Regime of Novelty in the Roman Catholic Church (2002)). Consider that, these days, the closing of countless parishes on account of the auto-demolition of the Church is couched in terms of "Making All Things New." Hah! Even Rex Mottram would see through the shams that have become the way of diocesan business in so much of the Church in the United States. Here in the Archdiocese of Philadelphia, the much-touted "new springtime" in the Church has resulted in a fire sale (to pick just one among countless possible examples: nursing homes sold ) that will spare precious little of what those who held the Faith built brick by brick in a spirit of sacrifice and appropriate Christian triumph of the Church Militant
The point is, nothing Catholic -- neither doctrine nor discipline -- prevents Catholics from faithfully holding and practicing the Faith as it was held and practiced before the Second Vatican Council. If that Council contributed prudential solutions to today's problems, that prudence has yet to be demonstrated, in my judgment. Rod Dreher asks with characteristic insight "what is traditional Christianity anyway?" The term "Traditional Catholicism" is a piece of pleonasm made necessary by the regime of novelty, but Catholicism will outlive the partisans of novelty, as Cardinal Newman taught us. The true Church is Christ-continued-in-the-world, and the faithful live by the promise made in Matthew 16:18 .
This news is a few days old, but I thought it appropriate anyhow to follow up on my prior post about the post-Town of Greece legislative prayer practice of Chesterfield County, Virginia.
The Board of Supervisors has changed its legislative prayer policy. Starting next year, the supervisors will rotate among themselves in delivering an invocation or presiding over a moment of silence. This is a shift away from a practice of inviting ordained clergy of monotheistic religions, which some contended was unconstitutional under a perceived non-discrimination requirement in the Supreme Court's decision in Town of Greece v. Galloway.
The shift is prudent even if not constitutionally required, and it may be that the supervisors were closer in thinking to Josh Blackman's assessment of Town of Greece than to mine. The decision may also reflect the reality that the County would be on the hook for plaintiffs' attorneys' fees and costs if the County litigated and lost, but the County could not recover it own fees and costs if the County litigated and won.
Thursday, July 24, 2014
The papers from the St. Thomas Law symposium on "Intellectual Property and Religious Thought" have been published. I'm confident they'll be a great resource for future reflection on this now-vital subject. My foreword to the symposium is available on SSRN. All of the papers are available here. Some of the papers are also on SSRN (see this earlier post). Here's a taste from the abstract to my foreword:
The time is ripe for wider exploration about how religious themes, practices, and communities may inform IP law and policy....
This foreword summarizes the symposium papers, which fall into three categories: "God, Ownership, and Intellectual Creation"; "Life Patents, Religion, and Social Justice"; and "IP, Religion, and Social Relationships/Obligations." Symposium contributors include IP legal scholars Margo Bagley, Shubha Ghosh, Roberta Kwall, Bashar Malkawi, Alina Ng, and David Opderbeck, and religion/ethics scholars Audrey Chapman, Marco Fioretti, Paul Griffiths, and Jeremy Stern.
The foreword concludes with brief reflections on future directions in research and practice. First, religious reflections on creativity and ownership should influence the practice of religious communities and individuals, quite apart from the content of civil law. Second, with respect to law and policy debates, religious thought may “root” themes such as social obligation, or the sense of creativity as a gift, “in a richer social imagination that gives them meaning and weight,” as David Opderbeck puts it. Finally, religion has particular relevance to issues concerning IP, trade, and development in the global South--partly because many developing nations are deeply religious, and partly because religious agencies do much of the on-the-ground humanitarian work on matters with IP ramifications such as health care and agriculture.
With a new cover of the song being highlighted on a recent episode of “Under the Dome,” I was reminded again of the truly counter-cultural the lyrics for the late-Sixties era classic “Who’ll Stop the Rain” written by John Fogerty and performed by Creedence Clearwater Revival.
Lest we mistakenly remember the Sixties counter-cultural movement as uniformly liberal and infatuated with big government as the social justice answer, “Who’ll Stop the Rain” includes this pointed observation:
Caught up in the fable, I watched the tower grow
Five year plans and new deals wrapped in golden chains
The song warns that government promises seldom come without strings attached and government-centric solutions often have negative consequences that may not be anticipated. Attempting to solve social problems through entitlement programs risks the interposition of impersonal bureaucratic agencies and expanding government special interests, while trapping recipients in dependency and obliged to comply with government rules mandates that reflect the different moral ethos of the elite. One need not eschew all government programs (and I certainly do not) to believe that “Who’ll Stop the Rain” is healthy reminder that the rose may have thorns.
Now the song could be characterized as libertarian in nature, and Fogerty last year acknowledged that he’s “probably a lot more like some kind of libertarian or something.” But I also hear something decidedly spiritual in the first verse of the song — a reference to the age-old search for greater meaning and truth:
Long as I remember rain’s been comin’ down
Clouds of mystery pourin’ confusion on the ground
Good men through the ages tryin’ to find the sun
And I wonder, still I wonder who’ll stop the rain
While the singer of this song is certainly weary, the hope of noble people to find the sun remains — a hope that we as Catholics place in a person, not in a political messiah.
For those who wish to reminisce and those for whom this song is new, you can listen to the original recording here (with the standard YouTube license).
Catholic schools are "public" schools in the best sense of the word, contributing as they do to the public - and common - good of the communities they serve. In many communities, they serve non-Catholic and poor students and their parents.
As Rick Garnett has said on this blog many times, in a healthy society, the state ought to recognize the public character of these institutions and support them through vouchers or a similar funding mechanism. When the public schools were de facto Protestant and an anti-Catholic spirit filled the air, many states adopted Blaine Amendments to prohibit public funds being used to support parochial schools.
Could the Blaine Amendments - as ugly as they were - be a blessing in disguise in a culture that is increasing intolerant of religious dissent from secular orthodoxy? Because of the Blaine Amendments, Catholic and other religious primary and secondary schools - unlike religious colleges, which are dependent on federally subsidized student loans - have had minimal entanglement with government money.
There may come a day in the not too distant future when religious colleges and univesities will be faced with a choice: capitulate to the secular orthodoxy or ween yourself from the government teat. The Blaine Amendments unintentially shield many primary and secondary schools from this choice. Over a decade ago, James Dwyer wrote Vouchers Within Reason, which argued that vouchers might provide a way to bring relgious schools and their parental patrons to heels without have to padlock school doors or put parents in jail (his words, not mine). When I reviewed his book, less than a decade after the Religious Freedom Restoration was enacted with overwhelming bi-partisan support, I was hopeful that government strings attached to vouchers would not threaten the character and culture of these religious schools. I am much less hopeful today and therefore am inclined to see the Blaine Amendments as an unexpected blessing. Rick, I'd be interested in your take.
Does the ACLU's Steven Shapiro regret the organization's amicus curiae brief in McCullen v. Coakley?
SCOTUSBlog is running a series of video interviews with the ACLU's Steven Shapiro. Part 4, posted this morning, is on amicus curiae briefs. As Mr. Shapiro undoubtedly knows, one of the most important assets that an organization like the ACLU has in advocating in particular issue areas is credibility. Unfortunately, the ACLU lost a lot of credibility this past Term because of its amicus curiae brief in support of neither party in McCullen v. Coakley. Were such a question appropriate in the context of these videos (and it is not, I think), it would have been interesting to ask Mr. Shapiro whether he regrets filing this brief.
Mr. Shapiro was counsel of record on what has to be one of the least speech-protective briefs ever filed by the ACLU in the Supreme Court of the United States. The longest portion of this brief's defense of the facial constitutionality of Massachusetts' public sidewalk speech restrictions argues that the law is a narrowly tailored time, place, and manner restriction. See Section I.B. The ACLU did not pick up a single vote for this position on the facial constitutionality of the Massachusetts law--not from Justice Ginsburg, nor Justice Breyer, nor Justice Sotomayor, nor Justice Kagan, nor the Chief Justice. Indeed, the Court held unanimously that the law was facially unconstitutional.
The ACLU's McCullen brief did leave open the possibility that the Massachusetts statute could be invalid on an as-applied basis. But this portion of the brief probably would have been taken by the Justices and their clerks as a half-hearted attempt to save face rather than a serious attempt to protect freedom of speech. If this were not apparent from the Table of Contents alone, readers might have been tipped off by footnote 5, which explains the how the ACLU's position "evolved over time."
McCullen now sets the standard for serious narrow-tailoring scrutiny of content-neutral speech restrictions. This unanimous decision is likely to protect significant amounts of speech that otherwise would not have been protected without it. And the ACLU was on the wrong side.
There once was a time when the ACLU defended the First Amendment even when doing so conflicted with other (politically, not classically) liberal goals. See, for example, the ACLU's brief (with Mr. Shapiro as counsel of record) in Hill v. Colorado. But the McCullen brief suggests that those days are over.
Not all evolution is progress.
Shame on the ACLU for abandoning free speech principles in McCullen v. Coakley.
The titular questions refer to the issue of the reduction in the strength and integrity of rights by the increase in their number and scope. The issue is: do you weaken rights by multiplying them and broadening them? Or instead, as the size and scope of government itself expands, is the concomitant expansion of rights (in number and coverage) necessary simply to keep pace?
The best defense of the view that more is less with respect to the First Amendment belongs to Philip Hamburger. Hamburger's key claim is that as one expands the scope of the rights protected under the First Amendment, one weakens those rights inasmuch as the degree to which one conceives of them as something approaching inviolable (though never actually inviolable) decreases. Where the scope of rights is limited, it requires some really and truly compelling rival concern to overcome the right. But as the scope of the right increases, so too does the need to "balance" the right against rival interests.
That particular "more-is-less" claim depends on the scope given to a protected right. A related "more-is-less" claim focuses on the expansion of the number of protected rights. That's the claim Steve Smith makes in a hot off the presses post at the Liberty Law blog (if you haven't seen it, Steve Smith is writing up a storm over there). Steve writes:
[S]uppose we relax our standards, and relax them again, and expand our thinking, and fine-tune our sensibilities and sensitivities, to the point that anything that any favored constituency really, really wants comes to be viewed as a “right.” In other words, we follow the path that the Warren Court– and, truth be told, the Burger Court, and to a significant extent the Rehnquist Court, and even in some respects the Roberts court– followed. Or we heed the prescriptions of political theorists and constitutional scholars to codify as “rights” all manner of privacy and dignitary and equality and self-fulfillment interests. Perhaps we use as a guide Martha Nussbaum’s list of essential human “capabilities” without which it is ostensibly impossible to be “truly” or “really human.” These would include things like the use of senses, imagination, and thought; bodily health; and bodily integrity (including “opportunities for sexual satisfaction”). Without “opportunities for sexual satisfaction,” your life is not “really human”; so surely you must have a right to such opportunities.
Under this impulse, rights would multiply like rabbits. But given some such vastly expanded inventory of rights, it will be impossible to give all of these rights...“compelling interest” protection. For one thing, government would thereby be effectively paralyzed, because just about anything government might do will run up against one of more of the newly articulated “rights.” For another, some of these diffuse rights are sure to conflict with others. For still another, government’s rights-oriented obligation now is not just to leave people alone in certain respects, but affirmatively to supply people with lots of desired things: and in a world of scarcity there is only so much that government can supply (or can mandate that employers, say, must supply)....
Now, to say that something is a right is basically to say that it should be taken into account, or given “weight,” in the balancing of competing interests that goes into the formulation and assessment of laws and government policies. Government should not infringe the “right”– unless, of course, there is some good reason to do so.
Though this is strictly speaking a claim about how the increasing number of rights weakens the protection of such rights, the connection to the issue of scope is evident. Take the RFRA rule that only those religious burdens that are "substantial" trigger the law's protection. A religious burden isn't enough. It has to be a really, really big, terrible burden. The more-is-less claim is that by broadening the scope of protection and increasing the number of things that we protect in the name of religious freedom, we've now got to have some mechanism to limit the kinds of claims that merit protection in the first place. So we superimpose the language of "substantiality" and we talk about the shifting of burdens and the balancing of interests because we've watered down the basic right so much that we don't even really know what it is that counts as the right in the first place any longer.
But there is another side to the story. That side is admirably represented by John Inazu in this paper--More is More: Strengthening Free Exercise, Speech, and Association. John argues, to the contrary, that the thesis of "rights confinement" as giving strength to existing rights does not account for the ways in which cultural developments can affect the scope of rights. In the First Amendment context, some explanations for weakening of the right of religious freedom include decline in popular support for the right, the ideological cabining of the right (as, John argues, has happened to religious freedom but not to the freedom of speech), and (most importantly I believe) changing cultural views about what constitutes a government interest--that is, in what government ought to be interested in at all.
Here I want to note an overlapping position in the more-is-less and more-is-more views. They seem opposed. But I wonder. Both recognize that a major part of the difficulty is not the individual right in question and our feelings about it, but the expanding scope of what is deemed a concern of the state. Both, that is, locate the crux of the more/less debate in changing societal perspectives on the fundamental nature of government and its role in the lives of the citizen.
If that is true, let me offer a point of agreement with John Inazu, and then perhaps a point of difference. The point of agreement is that in a society in which the government takes on more and more of a place and a role in the life of the citizenry, the protection of rights becomes a zero sum game. More is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state. The point of difference is that if this is so, then one should expect that with time it will begin to affect all rights, very much including the right of free speech. That is, the particular explanations for the more is more thesis that affect religious freedom (loss of the right's prestige in popular sentiment) will eventually hit other freedoms too. That is because the key issue is not evolving cultural perceptions of the right's strength and ambit, but evolving cultural perceptions of the strength and ambit of the state's proper power.
Wednesday, July 23, 2014
At the Cornerstone blog, Prof. Carl Esbeck has a helpful piece ("Differences: Real and Rhetorical") regarding the President's recent Executive Order having to do with sexual-orientation and gender-identity discrimination by federal contractors. In it, Esbeck responds to certain claims made by a group of prominent legal academics, in their own letter opposing any religious exemptions in the Order. Esbeck concludes:
How do we live together as a people despite our deepest differences? The nation’s better practice, historically, was to bracket off religious conscience and thereby stop making religious scruples fair game for partisan debate. America’s unique contribution to government theory was to separate matters of religious conscience from the machinery of politics and the will of the majority. That approach has brought us sectarian peace despite our unprecedented religious pluralism. Why trade in a system that has served this country so well for one that has served others so poorly?