Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Friday, November 21, 2014

Jody Bottum on the new heresies and shunning

A perceptive essay, here, at The Weekly Standard.   Bottum observes (among other things) that the movement from "religious" to "spiritual" to secular has not -- far from it -- erased the impulse to cast out the heretic.  A taste:

Our social and political life is awash in unconsciously held Christian ideas broken from the theology that gave them meaning, and it’s hungry for the identification of sinners—the better to prove the virtue of the accusers and, perhaps especially, to demonstrate the sociopolitical power of the accusers. Moreover, in our curious transformation from an honor culture into a full-fledged fame culture over the past century, we have only recently discovered that fame proves just as fragile as honor ever was, a discovery hurried along by the lightning speed of the Internet. Twitter and Facebook may or may not be able to make someone famous, but they can certainly make someone infamous in the blink of an eye. And because sinners’ apologies never receive the same publicity as their sins, the Internet both casts its targets from the temple and leaves them out there, lost among the profanities.

November 21, 2014 in Garnett, Rick | Permalink

An important religious-freedom ruling in Germany

According to this report, "the German Federal Constitutional Court (Bundesverfassungsgericht) has upheld the right of churches and other religious institutions to request their employees to abide by their religious and moral ethos. The case concerned a doctor working at a church-owned hospital who was fired after he got divorced."  

November 21, 2014 in Garnett, Rick | Permalink

Matthew Rose on "Tayloring Christianity"

Charles Taylor is rightly regarded as one of the great philosophers of the age, Catholic (as he happens to be) or not. I much admired his 1992 tome Sources of the Self and regard some of his earlier papers as essential contributions to contemporary political and social theory (see, eg, the paper "Atomism" in volume 2 of his Philosophical Papers). But I found his widely renowned and commented upon A Secular Age (2009) frustratingly diffuse. I also had a hunch that the cultural diagnosis (and remedy) of my former teacher Alasdair MacIntyre was more acute but couldn't quite put my finger on the differences between Taylor and MacIntyre. Along comes my friend Matthew Rose with this splendid essay at First Things on Taylor. Here is an excerpt from Rose's conclusion, but read the whole thing to appreciate the range of his deep and critical engagement with Taylor:

The failure here is not that Taylor sets aside the authority of dogma and discourages us from entering more deeply into the wisdom of the Christian past. That’s something we’re all familiar with, not just in our secular culture that can do without the Church’s teaching, thank you, but in our own thinking as well. Taylor rightly describes our experience of modern faith as riven with contingency. Those committed to the Church have lots of interior ways to set aside the authority of dogma, even as we affirm it.

No, the failure is much greater and potentially more debilitating. By assimilating a secular way of believing with the essential content of Christian faith, A Secular Age sanctifies and makes absolute precisely what we should regard as contingent—the age in which we live. This is not to say that much of what Taylor writes about the ways secularity has altered our culture and our sense of self is wrong and should not shape academic debates. His descriptions of the secular age are compelling and deserve the wide discussion they have inspired.

But if it is true that we have reached the end of an era and now live in a secular age, it will be even more important for Christians to know what has been lost and why. This Taylor will not and perhaps cannot teach us. Instead, he makes secularism invincible to the radical criticism it most needs. Like all Hegelians, Taylor is an apologist for the present, a theologian of the secular status quo.

Alasdair MacIntyre also diagnosed our culture as fatigued by the mutual antagonisms of rival traditions. MacIntyre, however, maintained a chastened confidence in the power of human reason to guide us toward the perfected understanding that is the end of all inquiry. Our confusions and disagreements, he wrote in his Gifford Lectures, “can be a prologue not only to rational debate, but to that kind of debate from which one party can emerge as ­undoubtedly rationally superior.”

MacIntyre combated the prejudice, uncritically affirmed by Taylor, that secular modernity is a historical dispensation from which there is no intellectual escape. He called his work a “radical renovation” of classical traditions of thought. Its most important consequence has been a growing confidence that the work of human reason can be undertaken in a context broader than that of modernity.

We would do well to listen to Taylor, but apprentice ourselves to MacIntyre. For Christians in a post-Christian culture will need to think in terms of the most expansive of all temporal horizons—a time, bounded by the beginning and the end of God’s holy purposes, that Augustine, writing at the end of another ­epoch, called the saeculum.  

 

November 21, 2014 in Moreland, Michael | Permalink

Wednesday, November 19, 2014

Mumford on the Notre Dame Center for Ethics and Culture's Conference on Poverty

I am late posting about this, but the recent conference at the Notre Dame Center for Ethics and Culture, "Your Light Will Rise in the Darkness: Responding to the Cry of the Poor," was a superb event that reflected the best thinking from a range of disciplines on the issue of poverty. The keynote addresses by Nobel Laureate James Hickman, Alasdair MacIntyre, John Finnis, and Gerhard Cardinal Müller were rich in insights from economics, philosophy, and theology, as were the breakout sessions. I can do no better than this summary from James Mumford (University of Virginia Institute for Advanced Studies in Culture). A bit from Mumford's conclusion:

One lasting impression of Notre Dame’s “Your Light Will Rise” conference was the way that Catholic social teaching—from Leo XIII’s famous encyclical Rerum Novarum (1891) onwards—defies the left-right axis. Thus, in interview Cardinal Gerhard Müller, the prefect of the Vatican Congregation for the Doctrine of the Faith, could on one hand speak of the necessity of “facing head-on the effects of a system that places profit at its center,” while on the other emphasizing that Pope Francis’s conception of poverty “[goes well] beyond a merely economic conception of poverty.” For his part, Patrick Deneen, the political thinker who shone in the debate that closed the conference, came at capitalism from a conservative standpoint, lamenting, among other things the loss of tradition and the anonymity of markets.

This defiance of the left-right axis, so clearly on view in Notre Dame last week, suggests not only why Catholic social thought has so much further to run. It also suggests why, given how fed up a growing part of the electorate is with the level of political polarization, Catholic social thought should be increasingly heard.

November 19, 2014 in Moreland, Michael | Permalink

Being Worthy of the Dead

Today is the anniversary of Abraham Lincoln's "Gettysburg Address," delivered on this date in 1863. The address is short and most people have a dim recollection of the first few words of it. But on reading it again, I was reminded of one of its central messages--that the dead, and their efforts and sacrifices, consecrate and even redeem the living, if the living attend to and pursue the projects of the dead. The living must be dedicated to the projects of the dead, and must aspire to be worthy of the dead. A rather unfashionable message indeed in our own time:

It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

November 19, 2014 in DeGirolami, Marc | Permalink

Tuesday, November 18, 2014

Animus-based invalidation of really old man-woman marriage laws

I guess I should have been reading blog posts instead of law review articles. A little earlier today, Dale Carpenter published a Volokh Conspiracy post criticizing one part of Judge Sutton's rational basis analysis in DeBoer v. SnyderThe first link in that post is to an earlier VC post by Professor Carpenter about a district court decision holding unconstitutional a Michigan law prohibiting localities from extending benefits to employees' same-sex domestic partners. And that earlier post includes a discussion about the scope of animus-based arguments against legal definitions of marriage as the union of one man and one woman. After identifying five factors for an animus analysis (textual, contextual, procedural, effectual, and pretextual) and contending that they show the unconstitutionality of the state constitutional amendments that "constitutionalized marital definitions of the first time," Professor Carpenter turns to the marriage statutes that preceded these amendments. He writes: 

Even the remaining exclusion of same-sex couples from marriage reflected in longstanding state statutes may be vulnerable to animus attacks based on the other objective factors noted above. It can hardly escape notice that states have consciously and steadfastly refused to include same-sex couples in their marriage statutes, in addition to specifically excluding them through anti-SSM state constitutional amendments and through state "mini-DOMAs" that deny all recognition to married same-sex couples from out of state. A failure to include, as well as an affirmative act to exclude, may also reflect animus against a class. That is at least a question the Supreme Court may now consider.

If animus-based invalidation extends to encompass statutory definitions from the late-eighteenth and early-nineteenth century, then the remedial question asked in my prior post has an easy answer. The remedy for animus-based invalidation of state constitutional amendments defining marriage as the union of one man and one woman cannot be a return to the status quo ante because that status quo was also unconstitutional.

This expansive understanding of animus seems to present problems of its own. For example, Professor Carpenter describes animus analysis as a type of purpose-based constitutional test. But it would not have been possible to form the purpose to exclude same-sex couples from marriage at least until it was possible to conceive of marriage as potentially including same-sex unions. That may be why Professor Carpenter focuses on conscious and steadfast refusal to expand marriage definitions, which in turn would seem to raise a state action problem. In any event, I wanted to link to Professor Carpenter's posts because they contained one answer to the question asked in my last post.

November 18, 2014 in Walsh, Kevin | Permalink

Why isn't the remedy following from animus-based invalidation of more recent marriage laws return to the status quo ante?

Judicial holdings of unconstitutionality come in various shapes and sizes. And the shape and size of the judicial remedy following from an unconstitutionality holding depends in significant part on the substantive constitutional law that specifies the precise nature of the constitutional problem identified. These are uncontroversial commonplaces.

There is often room for controversy, though, over just how the relationship between right and remedy should be specified in particular cases. One aspect of Judge Sutton's opinion for the Sixth Circuit in DeBoer v. Snyder that has not received as much attention as it should is his discussion of the limited remedy that would follow from invalidation of relatively recent state constitutional amendments regarding marriage on the ground that they were enacted out of anti-gay animus. This discussion comes at the end of Part II.D of his opinion, right in the analytical middle of his examination of the constitutionality of man-woman marriage definitions. (The analysis of animus-based invalidation is in the fourth of seven sections in Part II.) But the groundwork for the argument appears in Part I, where he discusses the genealogy of current marriage law in each of the four states whose definitions of marriage were at issue.

Michigan, Kentucky, Ohio, and Tennesse each defined marriage as the union of one man and one woman well before same-sex marriage was contemplated in any state. Each of these four states also enacted a constitutional amendment locking in the man-woman definition in the first decade of the twenty-first century. Sutton contends that the argument for animus-based invalidation is limited to these constitutional amendments, and that accepting that theory of invalidation would simply return each state's marriage law to the pre-amendment status quo: 

Even if we agreed with the claimants that the nature of these state constitutional amendments, and the debates surrounding them, required their invalidation on animus grounds, that would not give them what they request in their complaints: the right to same-sex marriage. All that the invalidation of the amendments would do is return state law to where it had always been, a status quo that in all four States included state statutory and common law definitions of marriage applicable to one man and one woman--definitions that no one claims were motivated by ill will. The elimination of the state constitutional provisions, it is true, would allow individuals to challenge the four States' other marital laws on state constitutional grounds. No one filed such a challenge here, however.

This argument sounds right to me. But perhaps I misunderstand the scope of the argument for animus-based invalidation. If heteronormativity equals animus, for instance, then the argument for invalidation runs all the way down and back. But if a "go-slow" rationale for maintaining the pre-Goodridge status quo could defeat an animus argument against a state's more recent marriage amendment, as Dale Carpenter has suggested might be the case (see fn. 31) while also suggesting there may be other constitutional problems apart from animus, then codification of the heteronormative status quo in the late eighteenth or early nineteenth century is probably not vulnerable to an animus-based attack either. Hence the title of this post: Why isn't the remedy for animus-based invalidation of more recent marriage laws return to the status quo ante?

November 18, 2014 in Walsh, Kevin | Permalink

Monday, November 17, 2014

Vatican Colloquium on the Complementarity of Man and Woman in Marriage

It was an extraordinary day at the Vatican Colloquium on the Complementarity of Man and Woman in Marriage.  Pope Francis adddressed what he called the "crisis" in marriage and declared that children have a right to a family with a mother and a father.  The point was then stressed by Cardinal Gerhard Muller, Prefect of the Congregation for the Doctrine of the Faith in his address.  Pastor Christoph Arnold of the Bruderhof communities followed with a passionate defense of marriage against contemporary currents of thought that trivialize it or reduce it to something concerned mainly with the satisfactions of adults, and not with the need for children to have the care and influences of mothers and fathers in the marital bond. Rabbi Lord Jonathan Sacks then offered a brilliant account of the development of the idea of marriage as a conjugal union of sexually complementary spouses and a critique of ideologies that weaken the marriage culture, with devastating effects on the weakest and most vulnerable members of society, especially children and the poor.  His remarks were given a lengthy standing ovation. Sister Prudence Allen followed with a tightly argued philosophical defense of complementarity.  And that was just the program for the morning! We also heard moving and insightful presentations from Nigerian Anglican Archbishop Nicholas Okoh (on why African Christians will not yield to liberal individualist and relativistic ideas about marriage and sexual morality), Dr. Rasoul Rasoulipour (offering an Islamic defense of marriage as a male-female union), and the Venerable Niso Takeuchi (giving us a Japanese Buddhist perspective). Dr. Harshad Sanghrajka represented the Jain tradition and Dr. Janna Matlary, the former Secretary of State of Norway, provided an assessment of the cultural and political challenges facing those of us in the West who are determined to defend marriage as a conjugal union and rebuild the marriage culture.  Tomorrow we will hear from Pastor Rick Warren, Dr. Russell Moore of the Southern Baptist Convention, and Dr. Jacqueline Rivers, among others.

November 17, 2014 | Permalink | Comments (0)

Thoughts about a Catholic university's curriculum

Here are some comments that I emailed in, in response to a request by the University of Notre Dame's Core Curriculum Review Committee.  They connect with and echo things that various MOJ-ers have said and thought about over the years, and I thought they might be of interest:
 
[It] seems to me that the University of Notre Dame, given its aspiration and its vocation to be the world's great Catholic research university, should be proud, and not afraid, to affirm that there are indeed things that a student who graduates from a great Catholic research university should know.  It seems that, in some quarters, it is thought unfashionable, nostalgic, or reactionary to insist that there really are things -- propositions, names, dates, facts, arguments, hypotheses, etc. -- that an educated person should know, and should know as *true.*  We cannot think critically and well, after all, if we don't know enough to know what we should be thinking critically about.  The move at many universities, including the ones I attended, away from "core" curricula and courses to all-elective programs is often defended as liberating, but I think this move, if taken too far, is a mistake.  A Catholic research university, even one with students as gifted and accomplished as ours, should still embrace proudly the responsibility to make sure our graduates not only know how to do certain things but also *know* certain things.  And, as Richard Brodhead (the past President of my own alma mater) suggested, Notre Dame should not worry too much about doing what other top-tier research universities are doing, at least when it comes to questions about the relationship between the University's interesting and distinctive -- and interesting *because* distinctive -- character, on the one hand, and its decisions about the curricular content and moral formation, on the other.  We already have a Princeton and a Duke (and an Ohio State and an Illinois), and others like them, but there's really only one Notre Dame.   
 
What those things are is, of course, a question the Committee is considering and answering that question is difficult.  My point here is just that, in my view, a university like ours should have a Core Curriculum and it should care, at least to some extent, about the content of what is actually conveyed in required or requirement-satisfying courses, and not just those courses' general area (e.g., "history", or "philosophy").  If we are not willing to attend, at least to some extent, to the content of, say, the courses that satisfy the Theology, Philosophy, and History requirements, then it is arguably more difficult to justify the requirements themselves.  It is important not just that our graduates have taken a "history" course, but that they be conversant -- at the level we want citizen-leaders to be conversant -- with the basic outline of American history and of (speaking very broadly) the story of the West.  It is worth saying, I think, not just that students should take two courses in "theology," but also to say that students will be familiar with the teachings, history, traditions, and sacred texts of Christianity.  This is not because our mission is to do remedial catechesis, but because part of our proposal to the broader society, as a Catholic research university, is that Christianity is not only true, but also worth knowing about.
 
I realize that this way of thinking about the questions might sound a little dated.  We talk now more in terms of "competencies" and, to be sure, there are many such competencies that we want to help form in our graduates.  My suggestion here is simply that the competencies and skills should not crowd out or substitute for the content; it is important that a student know how to think critically about a text like "The Brothers Karamazov" (or the Gospel of Mark) but it is no less important that they know about, have read, (texts like) "The Brothers Karamazov" (or the Gospel of Mark).

November 17, 2014 in Garnett, Rick | Permalink

Bainbridge on CST and Usury

Prof. Bainbridge is providing nice updates and reports from the "Catholic Social Thought and the Law" seminar he's teaching.  (Lucky UCLA students!).  Here's one on "Usury."  Check it out!

November 17, 2014 in Garnett, Rick | Permalink

A new position of interest

Mirror of Justice is not a jobs-postings site, but I thought this one might be of special and particular interest:

The Catholic Benefits Association (CBA) has had substantial success in providing a means for Catholic employers to provide health care coverage consistent with Catholic values.  It and its subsidiary, the Catholic Insurance Company (CIC), are searching for their first Chief Executive Officer.  With almost 700 member employers providing healthcare coverage for their 70,000 covered employees, the CBA and CIC seek a Catholic person who can build and manage a team dedicated to providing quality, competitively-priced, morally-compliant health care benefits for Catholic employers.   In addition to excellent leadership, marketing, and management skills, the successful candidate should also have substantial experience working with employer health plans, health benefits analysis, or group health insurance.  He or she should have a heart for the Catholic Benefit Association’s mission explained atwww.lifeaffirmingcare.com.  Those interested in applying should contact Joan Rennekamp atjrennekamp@lrrlaw.com or 719-386-3009.

November 17, 2014 in Garnett, Rick | Permalink

Pope Francis's powerful statement on the sanctity of life

Is here (HT:  Robert Imbelli at dotCommonweal).  A bit:

Fidelity to the Gospel of life and respect for life as a gift from God sometimes require choices that are courageous and go against the current, which in particular circumstances, may become points of conscientious objection. And this fidelity entails many social consequences. We are living in a time of experimentation with life. But a bad experiment. Making children rather than accepting them as a gift, as I said. Playing with life. Be careful, because this is a sin against the Creator: against God the Creator, who created things this way. When so many times in my life as a priest I have heard objections: “But tell me, why the Church is opposed to abortion, for example? Is it a religious problem?” No, no. It is not a religious problem. “Is it a philosophical problem?” No, it is not a philosophical problem. It’s a scientific problem, because there is a human life there, and it is not lawful to take out a human life to solve a problem. “But no, modern thought…” But, listen, in ancient thought and modern thought, the word “kill” means the same thing. The same evaluation applies to euthanasia: we all know that with so many old people, in this culture of waste, there is this hidden euthanasia. But there is also the other. And this is to say to God, “No, I will accomplish the end of life, as I will.” A sin against God the Creator! Think hard about this.

November 17, 2014 in Garnett, Rick | Permalink

John Allen's interview with Cardinal George

Over at Crux, John Allen has a wide-ranging and interesting interview up with Chicago's Cardinal George.  Among other things: 

He spurns the entire left/right dichotomy, calling it “destructive of the Church’s mission and her life.”

“For us, the category that matters is true/false,” he said. “I reject the whole liberal/conservative deformation of the character of our lives. If you’re limited to that … then somehow or other you’ve betrayed your vocation as a bishop and a priest.”

Other highlights of the interview:

  • George denies being a culture warrior, and says he “deeply resents” suggestions he’s not as passionate about social justice and the poor as his successor.

In the Spring of 2007, I taught a course on "Catholic Social Thought and the Law," and Cardinal George was generous enough to join the class for a session and for dinner.  He is now, as Allen puts it, "fighting for his life" against cancer, and I hope we all are praying for him.   I was also struck by this:

From my perspective, I’ve seen myself for a long time as engaging culture. Engagement is not warfare. I know that’s less dramatic to say, and people like to have drama, but calling it ‘war’ deforms what I’m about. It really denigrates my motivation, and I resent that. I’m not trying to beat anybody up at all; I’m trying to proclaim the truth of the Gospel, which I have an obligation to do. Maybe there are times I could it more skillfully, or in a way that seems less abrasive. Of course, there are some people who think it’s abrasive as soon as you say, ‘I disagree with you.’ There’s not much I can do about that.

Read the whole thing!

November 17, 2014 in Garnett, Rick | Permalink

Saturday, November 15, 2014

Common Law Constitutionalism: The Meaning of Establishment Circa 1800 in Two State Courts

In this post, I speculated about the possibility that the meaning of "establishment" might be illuminated by the English experience of the term before the Constitution's drafting. The idea would be to understand "establishment" not by reference to a fixed meaning traceable to the founding, but instead by reference to a general, but not limitless, range of meanings in use as a matter of the common law experience antedating the Constitution. That range might have a core and a periphery, and while the periphery, it is true, might change over time, any changes would be very gradual and always intimately connected with the historical common law meanings of establishment.  

Our Center board member and my friend, Don Drakeman, helpfully points me to a different kind of common law evidence--uses of the term establishment in state courts after ratification of the Constitution. He argues that a shift was occurring in the meaning of the term during this period: from a narrow meaning limited to what Thomas Curry has called a meaning “modeled on the Anglican establishment in England,” to a broader meaning covering the issue of general assessments for funding churches. The former meaning would suggest a “sect preference” approach to the issue of establishment, while the latter would not.

In his book, Church, State, and Original Intent (at pages 216-229), Don describes the different post-First Amendment views in Massachusetts and New Hampshire circa 1800 about the meaning of establishment as expressed in three court cases—Avery v. Tyringham (1807), Barnes v. Falmouth (1810), and Muzzy v. Wilkins (1803).

Tyringham concerned Article III of the 1780 Massachusetts Constitution, the preamble of which at that time stated that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and [that] these cannot generally be diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality.” Based on that rationale, the Massachusetts Constitution goes on to authorize towns “to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion and morality.” But Article III also provided that “no subordination of any one sect or denomination to another shall ever be established by law.” The opinion of Justice Theodore Sedgwick (who also served as a member of the First Congress that adopted the Establishment Clause) concluded that in these “strong and energetic” provisions “the religion of Protestant Christianity is established. Liberty of conscience is secured.” (emphasis in original) That interpretation suggests that the sort of explicit public support for Protestant Christianity contemplated by the Massachusetts Constitution does constitute an establishment, even though Massachusetts never had an expressly authorized or designated official church establishment.

In a later Massachusetts case, Barnes v. Falmouth (1810), Justice Theophilus Parsons considered whether the minister of an unincorporated church could share in taxes raised under Article III. Justice Parsons wrote that the case provided an occasion to “consider the motives which induced this people to introduce into the constitution a religious establishment, the nature of the establishment introduced, and the rights and privileges it secured to the people, and to their teachers.” Here is Don’s description of the opinion:

According to Chief Justice Parsons, the rationale for an establishment is based on the fact that “[c]ivil government…availing itself only of its own powers, is extremely defective”; accordingly, “the people of Massachusetts…adopted and patronized a religion, which by its benign and energetic influences, might cooperate with human institutions, to promote and secure the happiness of its citizens.” Fortunately, he writes, “the people were not exposed to the hazard of choosing a false and defective religious system. Christianity had long been promulgated, its pretensions and excellences well known, and its divine authority admitted.” In particular, “This religion, as understood by Protestants, tending, by its effects, to make every man…a better husband, parent, child, neighbor, citizen, and magistrate, was by the people established as a fundamental and essential part of their constitution.” Pointing out that there is “liberty of conscience” for all, “whether Protestant or Catholic, Jew, Mahometan or Pagan, the constitution then provides for the public teaching of the precepts and maxims of the religion of Protestant Christians to all the people.” It is, therefore, “the right and duty of all corporate religious societies, to elect and support a public Protestant teacher of piety, religion, and morality.” Unincorporated churches could not share in taxes raised under Article III, concluded Parsons; otherwise, which teacher to be supported depends “exclusively on the will of a majority of each society incorporated for these purposes.”

221-222. Don argues that Justice Parsons’s description of this arrangement as an “establishment” shows that some Massachusetts jurists believed that the town-by-town assessments for Protestant teachers were themselves believed to be establishments. It is an interesting question whether the assessments themselves, or instead the assessments only as part of the general, if unofficial, privileging of Protestant Christianity as the civic religion, is really what Justices Parsons and Sedgwick are describing as an “establishment.” The latter possibility might narrow the meaning of establishment somewhat: the privileging of Protestant Christianity by all of the means described by these Justices in the Massachusetts Constitution—including the assessment scheme—comes perhaps closer to the meaning of establishment as “official” privileging than does a meaning which considers assessments favoring religion alone as an establishment.

A third piece of evidence can be found right over the border among some Justices in New Hampshire, where, Don writes, “at about the same time, a distinguished jurist who was a member of the Second through the Fifth Federal Congresses made a point of saying that the Granite State’s town-based general assessment tax system for the support of Protestant ministers, which was quite similar to the Massachusetts approach, was clearly not an establishment of religion.” 223

The issue arose in the 1803 case of Muzzy v. Wilkins, where Chief Justice Jeremiah Smith “considered whether a Presbyterian was entitled to an exemption from the town taxes in support of the Congregational church under New Hampshire’s constitution, which empowered the legislature to authorize the towns of the state to make provision for public protestant teachers of piety, religion, and morality.” According to Chief Justice Smith, the assessment system alone did not constitute an establishment: “No one sect is invested with any political power much less with a monopoly of civil privileges and civil offices. All denominations are equally under the protection of the law, are equally the objects of its favor and regard.”

Chief Justice Smith’s is that rare opinion where a judge actually provides a definition of an “establishment”: “A religious establishment is where the State prescribes a formulary of faith and worship for the rule and governance of all the subjects.”

This definition, it is true, is narrower than what can be discerned from the general approach in the two Massachusetts decisions. But New Hampshire’s state constitution at the time did not (so far as I know) contain the sort of language unofficially, but quite explicitly, privileging Protestant Christianity as was the case in Massachusetts. It might be that it was this general privileging (even if unofficial, and to include, in Massachusetts, state assessments) that was thought by both Massachusetts and New Hampshire jurists to constitute “establishment.”

At any rate, it would be worthwhile, as well as interesting, to explore the range of common law meanings of establishment before ratification of the First Amendment as well. As Don says in the book, it would probably be impossible to arrive at a single fixed meaning. But it might well be possible to reach consensus about a general range or spectrum of meanings, with core or uncontested meanings graduating outward toward peripheral or contested ones.

November 15, 2014 in DeGirolami, Marc | Permalink

A Deal for Dahlia Lithwick

Dahlia Lithwick has written a column with a very odd fundamental claim:

[H]aving covered the Court for 15 years, I’ve come to believe that what we’re seeing goes beyond ideology. Because ideology alone would not propel the justices to effect such massive shifts upon the constitutional landscape, inventing rights for corporations while gutting protections for women, minorities, and workers. No, the real problem, I think, is that the Court as a whole has gotten too smart for our own good....

The result has been what Professor Akhil Reed Amar of Yale Law School calls the “Judicialization of the Judiciary,” a selection process that discourages political or advocacy experience and reduces the path to the Supreme Court to a funnel: elite schools beget elite judicial clerkships beget elite federal judgeships. Rinse, repeat. All nine sitting justices attended either Yale or Harvard law schools. (Ginsburg started her studies in Cambridge but graduated from Columbia.) Eight once sat on a federal appellate court; five have done stints as full-time law school professors. There is not a single justice “from the heartland,” as Clarence Thomas has complained....

A Supreme Court built this way is going to have blind spots. But right-wing legal and political groups—who are much better at the confirmation game than their equivalents on the left—have added a final criteria that ensures the Court leans strongly in their favor. They have succeeded in setting the definition of the consummate judge: a humble, objective, nearly mechanical umpire who merely calls “balls and strikes,” in Roberts’s insincere but politically deft phrasing. This lets conservatives sell nominees who are far more conservative than liberal nominees are liberal. A Democratic-appointed justice makes the short list by having her heart in the right place, but will be disqualified for heeding it too much.

Lithwick is hardly the first to observe that the Justices all attended elite law schools or that the Court is "cloistered" by comparison with past Supreme Courts. A majority of the members of the current Court--5--were, as Lithwick notes, for a time professors and deans at such law schools. 

I'll make Lithwick a deal: in about 10 years' time (right about the time where we might, perhaps, be getting some retirements, that is), we'll all--left, right and center--make a concerted effort to get some lawyers "from the heartland" nominated by the President and confirmed by the Senate. Or we'll do that for "war veterans," a category of Justice that Lithwick says she'd like to see on the Court. Or perhaps we'll just do it for lawyers from non-elite schools--solid, strong schools like St. John's University School of Law, with the kind of smart and highly capable lawyers whom I am privileged to teach (including in Constitutional  Law!), and who have rich and rewarding lives in legal practice of various kinds. We could call it "the Progressive Court-Packing Plan" or "the Heart-Is-In-The-Right-Place Plan" or "the Real Life Plan." The cardinal rule of the Real Life Plan Deal is: no graduates of elite law schools; and absolutely, positively, never, ever, ever any law school professors.

Unlike Lithwick, I'm quite unsure just what sort of ideological mix we'd get on the Court by following the Real Life Plan. But I'll take that bet.

November 15, 2014 in DeGirolami, Marc | Permalink

Friday, November 14, 2014

And Still Another Post on Yates: The Criminal Statute Interpretation Case That Proves to be Bigger on the Inside Than on the Outside (the Tardis Case)

Dr_Who_(316350537)

A couple of days ago, Kevin Walsh said that, after listening to the Supreme Court oral argument in Yates v. United States, he was tempering his prediction that the criminal defendant-petitioner in that case would lose unanimously.  At the end of the post, Kevin kindly suggested that Rick Garnett (who participated in an amicus brief in support of the petitioner) and I (who posted about Yates earlier here) might have the better of interpretive prediction this time around.

To tell you the truth, I’m not sure what the final outcome will be in Yates.  And, while I do come down on the petitioner’s side, I also don’t think that Yates on its peculiar facts presents the most important questions about how to read and apply the extraordinarily-broad obstruction of justice statute invoked here.

However it plays out in this case, I share Kevin’s reaction that the exchanges at the oral argument were remarkable.  The uneasiness expressed by several Justices about the breathtaking scope of this criminal statute may foreshadow what will come in later cases.  And those remarks suggest an increasing wariness on the Court toward federal prosecutors and over-charging, as well as growing concern about the proliferation, expansion, and severity of federal criminal statutes.

But I’ve jumped into the middle of the story.  So let me start at the beginning.

Below the fold, I will briefly sketch out the background to and issue presented in the Yates case, which is presently pending before the Supreme Court.

Then I'll explain how the arguably small and simple Yates case became the entry-point to these broader issues at the oral argument.  In the hope that you will keep reading below the fold, I offer here the Tardis teaser about the Yates case being bigger on the inside than the outside.

And once you’ve read some samples of the exchanges at the oral argument in Yates, I believe you’ll be sufficiently intrigued to continue with the discussion of these pressing issues — and to listen to the audio of this rather entertaining oral argument.

Finally, to put the deeper and more troubling issues about this broad obstruction of justice statute into a real-world context, I'll offer a hypothetical about a lawyer and a client who wishes to turn away from a life of sin.

Continue reading

November 14, 2014 in Sisk, Greg | Permalink

SSM & S5MT -- two objections answered and six federalism scholars questioned

I’ve argued previously that one can reason back from Congress’s lack of power to enact legislation requiring states to provide marriage for same-sex couples to the conclusion that Section 1 of the Fourteenth Amendment does not require states to provide marriage for same-sex couples. The argument is straightforward in form. If Section 1 of the Fourteenth Amendment requires states to provide marriage for same-sex couples, then Section 5 provides Congress with power to enact legislation compelling states to satisfy that requirement. But because Congress lacks such power under Section 5, Section 1 must not impose such a requirement.
 
This is a Section 5 modus tollens argument: If P, then Q; not Q; therefore, not P.
 
This is not a typical form of argument about the meaning of the Fourteenth Amendment. The interdependence of Section 1 and Section 5 is widely recognized, but this modus tollens argument breaks into the circle in an unusual spot. It uses the lack of congressional power to argue for the absence of a constitutional right. The argument usually runs the other way; one takes the presence or absence of a Section 1 right as a premise and uses that to draw a conclusion about the presence or absence of derivative congressional power under Section 5.
 
Is the usual way the only permissible way? Is there something wrong, as a matter of constitutional law, with arguing from the absence of Section 5 power to the absence of Section 1 right?
 
Two potential objections to Section 5 modus tollens come to mind.
 
One is that congressional power under Section 5 to enforce a Section 1 right is contingent on prior judicial recognition of such a right. 
 
This judicial pre-recognition requirement would be odd as a matter of original meaning given the evident congress-empowering function of Section 5. It would also extend beyond the requirements of current doctrine as I understand them. True, Boerne v. Flores requires congruence and proportionality between Section 5 legislation and the requirements of Section 1 as previously set forth by the Supreme Court. And given Baker v. Nelson, federal legislation that required states to provide same-sex marriage might be doomed under Boerne if enacted today. But if the Supreme Court simply had not spoken one way or the other on a constitutional right to same-sex marriage, I’m not aware of a doctrinal requirement that Congress would have to wait for explicit judicial recognition of such a right under Section 1 before enacting legislation to enforce it under Section 5.  The understanding of Section 1 underlying such legislation would be subject to displacement by a contrary judicial understanding of the requirements of Section 1 (something like a hypothetical Baker v. Nelson II (2015)). But the risk of invalidation because Congress predicts incorrectly what the Court would hold should not deprive Congress of the ability to predict. After all, maybe Congress and the Court will agree. If Congress had statutorily required states to provide interracial marriage the year before Loving v. Virginia, for example, that legislation would have and should have been valid even though enacted before the Supreme Court had explicitly confirmed the unconstitutionality of state prohibitions of interracial marriage.
 
A second potential objection to Section 5 modus tollens is that the legal validity of the premise about lack of congressional power simply cannot be known with the requisite legal certainty given legal uncertainty about the existence of a Section 1 right from which the existence of such Section 5 power could be derived. As long as this uncertainty persists, the assertion that “there is no Section 1 right because there is no Section 5 power” can always be met with the counter-assertion that “there is Section 5 power because there is a Section 1 right.”
 
This objection seems mistaken. If Section 1 right and Section 5 power stand or fall together, there is no reason in principle to think that we cannot eliminate legal uncertainty about one through legal certainty about the other. For example, we can know that Congress lacks power to eliminate equal representation of the states in the Senate. From that, we can infer that Section 1 does not provide an individual right to equal personal representation in the United States Senate. And we can be confident about the absence of such a Section 1 right even though one can generate plausible arguments for the existence of such a right from existing constitutional doctrine. 
 
What, if anything, can we know about Section 5 power without knowing one way or the other whether a Section 1 right exists? One place to start may a brief filed by a group of federalism scholars in United States v. Windsor. This brief expressed agnosticism about the existence of a constitutional right to same-sex marriage under the Equal Protection Clause. (I assume the scholars were similarly agnostic about the existence of such a right under the Due Process Clause or the Privileges or Immunities Clause as well, but this is not stated explicitly in the brief.) And the focus of the brief is on Congress’s enumerated powers, by which the scholars meant enumerated in Article I. The statements in the brief should therefore not be taken as assertions about the scope of congressional power under Section 5 of the Fourteenth Amendment. But in considering some of these statements about the absence of congressional power to define marriage, a question for those scholars and their lawyers is: Why not extend these claims to Section 5 as well? 
 
 Here are some statements from their brief about congressional power to define marriage:
 
‘[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.’ Sherrer v. Sherrer, 334 U.S. 343, 354 (1948). … Our claim is not that family law is an exclusive field of state authority, but rather that certain powers within that field—such as the power to define the basic status relationships of parent, child, and spouse—are reserved to the States.
[3-4]
 
The legitimacy of same-sex marriage is a difficult and divisive issue, yet it is one that our federalism has been addressing with considerable success. Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the States’ policy judgments as if it had the same authority to make domestic-relations law as they do.
[5]
 
[T]he federal government lacks constitutional authority to determine marital status in a blanket way.
[7]
 
In divisive social controversies like the debate over same-sex marriage, federalism lets each State and its citizens decide how to proceed, largely free of national pressure.
[9]
 
State-by-state policy diversity also facilitates experimentation, which can help resolve divisive questions reflecting deep-seated individual views about rights.
[10]
 
Only states can confer and define marital status under their police powers.
[26]
 
This Court has frequently, and recently, echoed that determining family status remains a State power.
[27]
 
DOMA … interferes with the States’ exercise of their reserved power to define marriage for their own purposes.
[31]
 
These statements support the claim that Congress lacks authority to require States to adopt a particular definition of marriage, such as one that recognizes same-sex unions as marriages. To be clear, though, the brief cautions: “Any State’s choice remains subject, of course, to the Fourteenth Amendment’s constraints, and we do not argue that state sovereignty provides any reason to narrowly construe the Equal Protection Clause. But unless equal protection requires recognition of same-sex marriage, the Constitution best protects liberty of same-sex marriage’s proponents and opponents by guaranteeing each State the right to decide for itself.” Given this reservation, it would not be inconsistent for one of these scholars to affirm Section 5 power for Congress to require states to provide marriage to same-sex couples. But why not interpret the Equal Protection Clause in light of the Constitution’s reservation of authority to the states to define marriage? 

November 14, 2014 in Walsh, Kevin | Permalink

Big D.C. Circuit loss for religious nonprofits in contraceptives mandate cases

A three-judge panel of the D.C. Circuit unanimously rejected all RFRA, APA, and constitutional challenges to the federal contraceptives mandate brought by a collection of religious nonprofits. Judge Pillard wrote the opinion for the court in Priests for Life v. HHS, in which Judge Rogers and Judge Wilkins joined. 

There is much to consider in the 86-page opinion. But from an initial review, the opinion seems to be the best that the government could have hoped for. On the RFRA claim, for example, the panel not only concludes that the mandate imposes no substantial burden because of the "accommodation" for non-exempt religious nonprofits, but also goes on to conclude that the government's scheme is the least restrictive means of advancing a compelling government interest. The main problem for the government, though, is that the opinion reads much more like Justice Ginsburg's Hobby Lobby dissent and Justice Sotomayor's Wheaton College dissent than Justice Alito's opinion for the Court in Hobby Lobby.  

(Note: Because I serve as counsel in a similar case that remains pending, I have tried to steer clear from getting too deep into blog analysis and criticism. I plan to maintain that course with respect to this opinion as well.) 

November 14, 2014 in Walsh, Kevin | Permalink

Fallon on Justice Breyer's Concurrence in Van Orden v. Perry

The latest issue of the Harvard Law Review contains an extensive appreciation of a selection of Justice Breyer's opinions. I thought to note one essay as particularly well done: Professor Richard Fallon's discussion of Justice Breyer's decisive concurrence in Van Orden v. Perry--one of two companion Ten Commandments decisions issued by the Court in 2005. In that concurrence, Justice Breyer decided for a variety of reasons that, he said, defied codification by test or iron rule, that the monument that had stood for many years on the grounds of the Texas State Capitol did not violate the Establishment Clause. Here is Professor Fallon (footnotes omitted):

Justice Breyer’s third ground for distinguishing prior cases, and especially McCreary County, seems to me to cut to the heart of the dilemma that the Supreme Court confronted. Even if the Texas monument’s long history did not dilute its religious message, that history served as a reminder that the Establishment Clause — read against the background of history — cannot, as Justice Breyer put it, “compel the government to purge from the public sphere all that in any way partakes of the religious.” From the beginning, religion has been woven in various ways into American public life. Recognition of this heritage does not, of course, point directly to the correct ruling in Van Orden. It does, however, help to identify the tension that Van Orden required the Court to resolve, or at least manage. Although the Supreme Court has frequently articulated a demand that the government must be neutral in matters of religion, neither that demand, nor what Justice Breyer referred to as the “Court’s other tests,” can “readily explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.”

Without purporting to offer a comprehensive resolution to the tension that the Court’s cases exhibit, Justice Breyer’s Van Orden concurrence suggests a narrow prescription that embodies pragmatic good sense. Although modern governments may not initiate novel forms of support for religious institutions and beliefs, the Establishment Clause should not be read to mandate the chiseling out — which in some cases might be quite literal — of all religious symbols and practices that have long formed part of the architecture of American public life, American public buildings, and American public monuments. To read the Clause so stringently would provoke anger at and resentment of the Supreme Court’s perceived hostility to religion far disproportionate to any good that this approach would achieve....

There is more, and it's well-worth reading. I, too, admire Justice Breyer's Van Orden concurrence, but while my reasons are similar to Professor Fallon's, they are not identical. Perhaps the primary point of divergence in our perspectives is that my defense of historical settlements and practices as a guide to interpreting the meaning of the religion clauses does not depend either on judges' pragmatic calculations about the comparative social divisiveness of ruling this way or that, or on an overarching or master commitment to religious neutrality, but instead on the intrinsic worth of long-standing historical settlements and customs (doctrinal and social) as a method of conciliating the conflicts that attend these controversies:

The past lies in us and is constitutive of who we are, and though history may be epistemically uncertain, logical certitude is hardly the point of a theory of religious liberty. This point serves as the connection to social history. If the doctrinal negotiations of the past are worthy, though imperfect, counselors for the predicaments of the present--if they are that which we know, and their memory is that which we have--then the objects of those negotiations deserve our attention as well. Political communities are not a-temporal or static associations. They are trans-generational enterprises that depend on the transmission of political and social histories....

The past, in sum, is a beacon. It is a consolation, sometimes effective, other times not, against the ravages of conflict, incommensurability, sacrifice, and tragic loss. 

The Tragedy of Religious Freedom 123, 144.

November 14, 2014 in DeGirolami, Marc | Permalink

Thursday, November 13, 2014

Immigration Law Symposium at the University of Oklahoma

Join us tomorrow for a symposium titled Chae Chang Ping v. U.S.: 125 Years of Immigration's Plenary Power Doctrine hosted by the Oklahoma Law Review. The symposium will be held in the Bell Courtroom of the law school from 9:30 to 12:30 on Friday, Nov. 14. CLE credit is available. Speakers include Rose Cuison-Villazor, Kevin Johnson, David Martin, Margaret Taylor, and yours truly. Unfortunately a cancelled flight will keep Victor Romero from joining us.

November 13, 2014 in Scaperlanda, Mike | Permalink

Witte on "The Shifting Walls of Separation"

Prof. John Witte (Emory) has posted a (natch) excellent essay, "The Shifting Walls of Separation Between Church and State in the United States."  Here's the abstract:

This article analyses five distinct understandings of separation of church and state in the American founding era of 1776-1812 and the continued influence and manifestations of each of these five understandings in current American constitutional law. The last section argues that separation of church and state is a valuable constitutional ideal, so long as it is used prudentially not categorically, and so long as it remains balanced with other founding principles of religious freedom.

One of my very first publications, as a law professor, was a short Green Bag review of what was then (in 2000) Witte's new book, Religion and the American Constitutional Experiment.   I have been learning from him ever since!

November 13, 2014 in Garnett, Rick | Permalink

Linda Greenhouse on King v. Burwell and "the devoutly Catholic chief justice" (Trinity Code Ed.)

Linda Greenhouse detects a possible conservative conspiracy to "put the heat on John Roberts." Her evidence is an opinion piece by John Yoo at National Review Online. In that piece, Yoo lays out four reasons that the Supreme Court is likely to agree with the petitioners in King v. Burwell that the Patient Protection and Affordable Care Act only authorizes subsidies to purchase insurance coverage for those who purchase from a state-established exchange. 

Yoo's reason three is that the case provides Chief Justice Roberts "the chance to atone for his error in upholding Obamacare as a valid use of the taxing clause in that case." Yoo argues that "it will be the mission of [Roberts's] Chief Justiceship to repair the damage." 

As the careful reader has no doubt already discerned from this language, Yoo is obviously trying to influence Chief Justice Roberts by appealing to his Catholicism. Linda Greenhouse explains: "His choice of the words 'atone' and 'mission,' with their religious resonance addressed to the devoutly Catholic chief justice, is no accident." Obviously. And that is really only scratching the surface. Maybe because Greenhouse is not Catholic, she did not know that part of our code is to send these religiously resonant messages in our third point. Because, the Trinity. (I have no idea whether Yoo is Catholic, but if not, he probably knows the Trinity code secret from some of his Catholic friends.)

Or maybe Greenhouse just did not want to pile on. Maybe her knowledge of the Trinity code is what explains her focus only on the first three sentences of Yoo's point three. Once you know what message is really being conveyed, you can ignore obvious surplusage like the fourth sentence: "Plus, the insincere misreading of the statute will grate especially hard on Roberts's professionalism--he seems to take seriously getting the right lawyerly answer to technical statutory questions." You see, Yoo obviously cannot believe that or expect his readers to believe it either. Plus, that fourth sentence, like this fourth sentence, begins with plus. Plainly surplusage, like this paragraph. (As any good Catholic coder would, I made my real point in the third paragraph. In case it wasn't obvious, and to help the uninitiated, that's why my third word in my third paragraph was "careful" and my third sentence was just one word: "Obviously." For those keeping score at home, extra points for just one word in sentence three of paragraph three and triple word score bonus for third word in title reading "no" spelled backwards.)

November 13, 2014 in Walsh, Kevin | Permalink

Wednesday, November 12, 2014

The South Carolina same-sex marriage order, limits on judicial power, and judicial supremacy

A federal district court in South Carolina issued a decision today that applied binding Fourth Circuit precedent to require same-sex marriage in South Carolina. (HT: Howard Wasserman at Prawfsblawg.) The district court refused to issue a stay pending appeal but did issue a temporary stay to give state officials time to seek a stay from the Fourth Circuit or the Supreme Court. In doing so, the court noted that a stay request in a similarly situated case from Kansas is pending at the Supreme Court right now.

On one level, this was a super-easy case, as easy as they come. A federal district court must follow binding circuit-court precedent. But there are some tough issues in the case as well. Consider the juxtaposition of the decision on the merits (plaintiffs win and should get their marriage license) with the practical effect (plaintiffs cannot get their marriage license while the ruling remains  stayed). Consider, further, the district court's acknowledgment that the temporary stay was unwarranted under the normal test for a stay:

The Court is mindful that the strict application of the four part test for the granting of a stay would result in the denial of even this one-week temporary stay. However, sometimes the rigid application of legal doctrines must give way to practicalities that promote the interest of justice. Providing this Court's colleagues on the Fourth Circuit a reasonable opportunity to receive and consider Defendant Wilson's anticipated petition for an appeal stay justifies this brief stay of the Court's injunctive relief in this matter.

Part of the problem here is that nationwide constitutional change is a messy process when carried out via federal courts of limited jurisdiction. Even if one thinks the Constitution is what the courts say that it is, the Constitution today means something different in Columbus than it does in Charleston until the Supreme Court promulgates a ruling from its perch in the District of Columbia. (And even that assumes we know what the Constitution means in Charleston while the ruling effectuating same-sex marriage there is stayed.)

There are many problems with judicial supremacy, but one of its touted benefits is a settlement function of sorts to eliminate messy disputes about constitutional meaning once the court of supremacy has spoken. This settlement function is not always successful; some Supreme Court rulings exacerbate constitutional conflict, as with Roe v. Wade. But in theory, at least, judicial supremacy provides a solution to problems presented by constitutional change.

By providing, roughly speaking, that our country's supreme law is what the Supreme Court declares the Constitution to mean, judicial supremacy serves the functions served by all three kinds of secondary rules identified by H.L.A. Hart as necessary for a well-working legal system. These are rules of recognition, rules of change, and rules of adjudication. Judicial supremacy looks like a rule of recognition. You know what the law is by looking to what the Supreme Court says that it is. But it operates via rules of adjudication. These govern how and when the Supreme Court can declare what the law is. And it functions as a rule of change. Constitutional law changes as the Supreme Court, following rules of adjudication, authoritatively declares it to change (rule of recognition). 

November 12, 2014 in Walsh, Kevin | Permalink

Tuesday, November 11, 2014

Section 5 Modus Tollens and Same-Sex Marriage via Federal Legislation

Suppose we assume that Congress lacks the constitutional authority to require states to redefine marriage to include same-sex unions. From this assumption, it can be shown rather easily that the Supreme Court lacks the same authority, at least insofar as such authority depends on interpretation of Section 1 of the Fourteenth Amendment. We can call the way of showing this Section 5 modus tollens. The same-sex marriage version of it goes something like this:

(1) If Section 1 of the Fourteenth Amendment provides a constitutional right to marry a person of the same sex, then Congress has authority under Section 5 of the Fourteenth Amendment to require states to redefine marriage to include same-sex unions.

(2) Congress possesses no such authority.

-------

(3) Section 1 of the Fourteenth Amendment does not provide a constitutional right to marry a person of the same sex. 

This is a valid form of argument: (1) if P, then Q; (2) not Q; (3) therefore, not P. If the argument is unsound, it must be that one of the premises is wrong.

Perhaps one might question the connection between the existence of a Section 1 right and the existence of Section 5 enforcement authority. But premise (1) seems pretty solid. Even those Justices who insist on a pretty tight connection between Section 5 enforcement legislation and the existence of constitutional violations under Section 1 would recognize the validity of federal legislation that prohibits states from defining marriage in a way that causes widespread and recurring constitutional violations stemming from the regular denial of marriage to same-sex couples possessing a constitutional right to enter into marriage.  

The pressure point for the argument must be premise (2). Even if Congress generally lacks the power to insist on a particular definition of marriage, it possesses authority to enact legislation ensuring that state definitions do not cause constitutional violations. Just as Congress could have enacted a valid federal statute requiring the provision and recognition of interracial marriage, for example, Congress can enact a valid federal statute requiring the provision and recognition of same-sex marriage. That's how the argument would go, anyhow.

The interdependence of Section 1 and Section 5 of the Fourteenth Amendment provides some reason for caution relating to the judicial recognition of new rights under the Fourteenth Amendment. The stakes are higher because individual rights and the growth of federal legislative authority go hand in hand. Judicial expansion of individual rights under Section 1 increases federal legislative authority under Section 5. As far as I am aware, however, the only federal circuit court opinion thus far addressing a version of this Section 5 argument in connection with a right to same-sex marriage is Judge Sutton's opinion for the Sixth Circuit in DeBoer v. Snyder.

Judge Sutton's discussion of Section 5 came in the portion of his opinion addressing why United States v. Windsor did not support the application of heightened scrutiny: "A decision premised on heightened scrutiny under the Fourteenth Amendment that redefined marriage nationally to include same-sex couples not only would divest the States of their traditional authority over this issue, but it also would authorize Congress to do something no one would have thought possible a few years ago--to use its Section 5 enforcement powers to add new definitions and extensions of marriage rights in the years ahead. That would leave the States with little authority to resolve ever-changing debates about how to define marriage (and the benefits and burdens that come with it) outside the beck and call of Congress and the Court. How odd that one branch of the National Government (Congress) would be reprimanded for entering the fray in 2013 and two branches of the same Government (the Court and Congress) would take control of the issue a short time later."

Given the convoluted mess of Section 5 doctrine at present, Judge Sutton may have overstated the expansion of Section 5 legislative authority that would actually result from adoption of heightened scrutiny to analyze the constitutionality of state laws defining marriage as the legal union of one man and one woman. Fresh off of recognizing a new constitutional right to same-sex marriage, Justice Kennedy could try to contain the federalism logic of that expansion, I suppose. But the linkage between Section 5 federal legislative enforcement authority and Section 1 individual rights recognition is undeniable and important. It has also been largely unappreciated up to this point.

November 11, 2014 in Walsh, Kevin | Permalink

Monday, November 10, 2014

Three steps toward coming to understand why the Sixth Circuit's marriage decision was right

The Sixth Circuit's recent split-panel ruling on the constitutionality of four states' legal definition of marriage as the union of one man and one woman has unleashed a wave of commentary. Most of the commentary I've come across has been critical of Judge Sutton's opinion for the panel majority. 

Generally speaking, criticism by legal scholars has been more measured than popular criticism in both substance and tone; some academic critics have even acknowledged that Judge Sutton's opinion contains some respectable (or at least competent) legal arguments. My impression, nevertheless, is that most law professors (a substantial supermajority) have an opinion that resembles in substance and tone some of the more popular criticism. That may be one reason why it is hard to find commentary by law professors expressing agreement with Judge Sutton's opinion. 

Another reason is the nature of the issues. One of the biggest challenges confronting the judges deciding these appeals was figuring out the best doctrinal framework for analyzing the legal claims. The Supreme Court (at least those in a Supreme Court majority) can determine this by fiat. But lower-court judges do not have that power. Judge Sutton addressed this challenge by looking at the core Fourteenth Amendment claims through seven different lenses, all in an admirably concise twenty-six pages (part II of the opinion, sections A-G, pp. 13-38). These were: (1) the perspective of an intermediate court [II.A, pp. 13-17]; (2) original meaning [II.B, pp. 17-18]; (3) rational basis review [II.C, pp. 19-24]; (4) animus [II.D, pp. 24-28]; (5) fundamental right to marry [II.E, pp. 28-31]; (6) discrete and insular class without political power [II.F, pp. 31-35]; and (7) evolving meaning [II.G, pp. 35-38].

Given the challenges posed by the variety of analytical frameworks, and in light of the range of sub-issues presented by each, my overall assessment of Judge Sutton's opinion is very positive. (No surprise there, of course for anyone familiar with my previous assessments of the constitutional issues and of Judge Sutton.) Judge Sutton's discussions of Baker v. Nelson [II.A] and of rational basis review [II.C] are particularly praiseworthy.  

I had originally titled this post "in defense of the Sixth Circuit's marriage decision." But I abandoned that title because a post with such a title would have to be much longer or just part one of a series. Instead, I offer here three steps in a chain of reasoning designed to explain to critics of the Sixth Circuit's marriage decision where at least some of us who believe it to be constitutionally correct are coming from.

First, "[t]his [really, actually, truly] is a case about change--and how best to handle it under the Constitution." If the federal Constitution provides a right to marry a person of the same sex, then federal courts obviously must enforce that right regardless of what popular majorities think. But if the federal Constitution does not provide such a right, then federal courts have no authority to act as if it does. In resolving the legal questions surrounding the existence of such a right, Judge Sutton's consideration of the broader constitutional structure of which the Fourteenth Amendment is just one part was entirely appropriate.   

Second, the relatively new belief that the federal Constitution provides a right to marry a person of the same sex is most readily understood as resulting from a change in public opinion rather than a change in the content of constitutional law.  

Third, it is unlikely that the federal Constitution provided a right to marry a person of the same sex prior to the relatively recent changes in public opinion. It is possible, of course, but not likely.

There is more that one can say with respect to each of these three claims and how they relate. For example, a change in public opinion may have enabled judges finally to see that the Constitution has always (or at least since 1868) provided a right that prior generations have been unable to see. Or maybe the Constitution does and should change in response to changes in public opinion. But recognizing the centrality of change to the issues decided in the Sixth Circuit appeal should take critics a long way toward recognizing the reasonableness of Judge Sutton's disposition even if they are ultimately unmoved on the outcome.

November 10, 2014 in Walsh, Kevin | Permalink